Sex, Culture, and Justice: The Limits of Choice (27 page)

We are left with objections 5 to 8. If we are political liberals of the kind Nussbaum wants us to be in ‘‘A Plea for Difficulty,’’ there seems

34. Nussbaum,
Sex and Social Justice
, 123–24. 35. Ibid., 124.

1. At least, this information
   ought
   to be available to women in Western countries. The women in Kathy Davis’s study of cosmetic surgery were rarely given adequate or accurate information. See Davis,
   Reshaping the Female Body
   , 130–31.
   

   to be nothing for us to say about these objections that has relevance for action.
   fgm
   is irreversible (objection 5), but so are most tattoos, male circumcisions, abortions, precautionary mastectomies or hysterecto- mies, and many sterilizations. The irreversibility of even a bodily proce- dure does not in itself suffice as a reason to ban it.
   fgm
   causes lifelong health problems (objection 6), but so do smoking, heavy drinking, un- healthy eating, inactive lifestyles, and many other activities against which political liberals such as Nussbaum do not want to legislate. If we remove the forced element, then the loss of sexual functioning (objection 7) is insufficient for a ban—remember, for Nussbaum, the person who has food may always choose to fast, and there seems to be no reason on the face of it why a political liberal should not allow an individual to deny herself something that others want for themselves. A political liberal does not forbid childless women in Western societies to have a hysterectomy to avoid unwanted pregnancy and the inconve- nience of contraception and menstruation,
   37
   even though the capacity to bear children is one which many women value highly.
   

   Perhaps, then, objections 5 to 7 are not supposed to have any politi- cal implications—they are reasons to dislike
   fgm
   , but nothing more. Nussbaum often does make a distinction between condemning prac- tices and banning them, endorsing the former but not the latter, as long as the practice is autonomously chosen.
   38
   However, she does not make this distinction with
   fgm
   . In
   Women and Human Development
   Nussbaum argues that even consensual
   fgm
   (performed once objec- tions 1 to 4 have been removed) could and should be banned, because it involves the permanent removal of a capability: ‘‘It seems plausible for governments to ban female genital mutilation, even when practiced by adults without coercion: for, in addition to long-term health risks, the practice involves the permanent removal of the capability for most sexual pleasure, although individuals should of course be free to choose not to have sexual pleasure if they prefer not to.’’
   39
   This focus
   

2. Women do in fact choose to have hysterectomies for this purpose: ‘‘Oregon researcher, Ov Slayden, said: ‘A lot of people don’t appreciate the impact of menstrual bleeding. It’s not just a lifestyle issue: it’s pain and discomfort, it’s a serious health issue. It is one leading reason for women to have elective hysterectomy’’’ (James Meek, ‘‘Drugs Could Put a Stop to Periods’’).
   

3. See, for example, Nussbaum’s position on the Catholic church’s refusal to ordain women priests, as laid out in her ‘‘Plea for Difficulty,’’ 114.
   

4. Nussbaum,
   Women and Human Development
   , 94. Nussbaum’s position is not unusual. In the United Kingdom, for example,
   fgm
   is prohibited under the
   Prohibition of Female
   

   on capabilities is clearly an attempt to avoid the clash between political and comprehensive liberalism: Nussbaum wishes to show that
   fgm
   is non-negotiable because it falls within the jurisdiction of the basic
   capabilities
   on which all are supposed to agree. But, in order to remain a political liberal, Nussbaum frequently allows individuals to alienate themselves from certain of their capabilities. Sterilization is an exam- ple. In true political liberal style, Nussbaum advocates state disinter- est.
   40
   Nussbaum’s political liberalism commits governments to ensur- ing that the basic capabilities are an option for all: that all are capable of the capabilities, as it were. However, she does not want to involve governments in forcibly ensuring that all individuals actually possess the relevant capabilities, regardless of their wishes on the matter— except in the case of
   fgm
   . Her official, politically liberal position re- quires only that the conditions of capability are provided by the state. However, in considering
   fgm
   , Nussbaum reverts to the position which is best suited by her awareness of the social formation of preferences and the existence of harmful social norms: just because someone wants to do something, that doesn’t necessarily mean that justice re- quires allowing them to do so.
   

   Nussbaum’s position on capabilities does not, therefore, provide the philosophical resources to justify a ban on
   fgm
   tout court.
   Neither does her prioritization of second-order autonomy.
   fgm
   can be thought of as an ingredient of a way of life that women may choose with second- order autonomy. Within cultures that practice it,
   fgm
   is often required for marriage. In such cases, we can think of
   fgm
   as an ingredient of marriage. More generally, we might think of
   fgm
   as a necessary ingre- dient of life within certain cultural communities: if women wish to maintain their membership, or to participate in the institution of mar- riage within it, they must undergo
   fgm
   . Some women might consent to undergo
   fgm
   , even though they might prefer not to, in order to become or remain eligible for community membership or marriage. A powerful objection to
   fgm
   is thus that it is an excessively high price to
   

   

   Circumcision Act 1985,
   regardless of the age, beliefs, or wishes of the woman concerned (Alex Sleator,
   The Female Genital Mutilation Bill,
   21–22). The modified bill, introduced by Ann Clywd as Bill 21 of 2002–3, does not seek to change this aspect of the legislation. Similarly, Nicholas Lund-Molfese argues that if any procedure is ‘‘properly described as an act of muti- lation, then a doctor would be acting unethically to perform the procedure even where the request for the procedure comes from an adult patient’’ (‘‘What Is Mutilation?’’ 64).
   

5. Nussbaum,
   Women and Human Development
   , 95.
   

   ask women to pay in order to remain within their communities. But, as we have seen, this is not an objection Nussbaum can make if she is to prioritize second-order autonomy. For that prioritization protects first-order nonautonomous lives—namely, those in which women have no choice but to undergo
   fgm
   if they wish to remain within their communities—as long as they are chosen second-order autono- mously—that is to say, as long as women are free to choose to leave their communities.
   

   It might seem that Nussbaum can still justify a ban on
   fgm
   via second-order autonomy, in two ways. First, the option of leaving one’s community is an extremely difficult one to take, and this fact under- mines the idea that women do indeed undergo
   fgm
   as a result of a truly second-order autonomous choice to stay within their communi- ties. Second, it is the case that marriage is the only viable option for women in many cultures that practice
   fgm
   , so that women cannot really be said to choose marriage with second-order autonomy either. These points are strong. They point to the necessity of increasing wom- en’s second-order autonomy wherever possible, perhaps by trying to provide meaningful options for women other than marriage or com- munity life. A political liberal prioritization of second-order autonomy would demand such measures. It would not, however, demand a ban on
   fgm
   , for such a ban would increase the first- and not the second- order autonomy of women.
   41
   

6. It is worth noting that it does not seem plausible that political liberals could justify a ban on
   fgm
   via the political liberal concept of the overlapping consensus either, as Drucilla Cornell attempts to do. Her treatment of
   fgm
   is more brazenly self-contradictory. First, she stresses that political liberalism holds even in cases of unjust identity formation, arguing that while ‘‘feminists are right to argue that many women have so deeply internalized their own degradation that they have lost the ability to imagine themselves as equal,’’ nevertheless feminist action should not follow: ‘‘If a ‘right consciousness’ is imposed from the outside by feminists who know what women should want, then the degraded status of those upon whom it is imposed is affirmed rather than challenged. This ‘corrective’ to false conscious- ness perpetuates the cycle it tries to break and, ironically, reinforces the intractability of women’s position in society. The imaginary domain as an ideal poses an inherent challenge to the symbolic intractability of any sexual identity by demanding that all such positions be left open for reinterpretation’’ (
   At the Heart of Freedom,
   169). One page later, however, Cor- nell renounces this line in favor of feminist transformative action: ‘‘I can see no way to reconcile [
   fgm
   ] with an equivalent evaluation of [women’s] sexual difference. But many women argue to the contrary, insisting that as a Western woman, I just don’t get it. But I have not changed my mind. And I strongly believe that feminists within the human rights community should continue to achieve an overlapping consensus that female genital mutila- tion is inconsistent with the equivalent evaluation of our own sexual difference’’ (170). This exhortation to ‘‘achieve’’ an overlapping consensus is not only odd in the face of the warnings against feminist attempts to undermine internalized degradation, it is also unrealistic. If
   

   A ban on
   fgm
   cannot, then, be explained by either the nonalienabil- ity of capabilities—for that would require a ban on sterilization—or the prioritization of second-order autonomy—for that would require undermining the centrality of cultural membership and/or marriage. What, then, could explain the particularity of
   fgm
   ? Objection 8 is one difference. Nussbaum writes:
   

   Female genital mutilation is unambiguously linked to customs of male domination. Even its official rationales, in terms of purity and propriety, point to aspects of sex hierarchy. . . . Sex relations constructed by the practice are relations in which in- tercourse becomes a vehicle for one-sided male pleasure rather than for mutuality of pleasure. By contrast, the ideal female body image purveyed in the American media has multiple and complex resonances, including those of male domination, but also including those of physical fitness, independence and boy- ish nonmaternity.
   

   These differences help explain why there is no serious cam- paign to make ads for diet programs, or the pictures of emaci- ated women in
   Vogue,
   illegal, whereas
   fgm
   is illegal in most of the countries in which it occurs.
   42
   

   This is indeed a salient difference between
   fgm
   and sterilization. The former, and not the latter, results from and perpetuates forms of male domination. In other words,
   fgm
   undermines gender
   equality.
   

   Liberalism is based on two key values: freedom or autonomy, and equality. We have seen so far how Nussbaum incorporates autonomy into her political liberalism. With objection 8 against
   fgm
   , she intro- duces equality, specifically gender equality. However, the role of equal- ity within political liberalism is somewhat ambiguous. Certainly, politi-
   

   

   political liberals want overlapping consensus to do the work that they suggest it does, then they must accept that we are probably stuck with pervasive gender inequality, a system that much of the world does in fact agree on and which certainly underlies almost all known societies. If, on the other hand, a commitment to gender inequality is indecent or unreason- able and so doesn’t count, or if we should try to change the minds of those who are commit- ted to inequality, then consensus is nothing more than a convenient way of getting other people to conform to liberal values with minimum fuss. The justification of those liberal values does not come from the fact of consensus, and the implementation of liberal policies does not avoid the claim that liberal values such as gender equality are
   better
   than alternatives.