Sex, Culture, and Justice: The Limits of Choice (29 page)

Nussbaum,
Sex and Social Justice
, 123.

that genital mutilation would be beneficial, and the extent to which she was being forced into a suboptimal practice by the salience of social norms. Put simply, we would ask ourselves what conditions would have to hold for such a decision to make sense. And we would be worried because the answer would include references to the deeply gendered nature of society, and the effects which that gender inequality has on the choices of women within it.

We should ask the same questions, and have the same worries, about the woman who chooses to have breast implants. We should ask ourselves what conditions have to hold for such a choice to be intelligi- ble. In many cases, the conditions will include the widespread belief that women’s success depends on their appearance, specifically on an appearance that emphasizes sexual availability. The following extract from
The Guardian,
about the fifteen-year-old British girl Jenna Frank- lin who wanted breast implants, illustrates both the concept of female success which is embodied in the surgically enhanced figure and the role of example in perpetuating that concept:

Franklin’s motivation for wanting to undergo surgery as soon as possible is nothing if not hopeful. ‘‘I want to be famous. And I don’t think you can be famous without boobs. When I’m going out and I’ve got to get dressed up, the world’s over for me.’’ Her parents, not uncoincidentally both employed in the cosmetic surgery industry, were happy to shell out the £3,250 required for the operation, but it looks as if their daughter still has a long wait ahead of her.

‘‘I had thought about having my breasts enlarged when I was 12,’’ she says, ‘‘but when I was about to turn 15, I saw so many people having it done that I wanted mine bigger as well. Every other person you see on television has had implants. If I want to be successful, I need to have them, too.’’
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We should be concerned about this case not simply because Jenna Franklin is not yet adult.
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It will have the same tragic resonances

Anita Chaudhuri and Crystal Mahey, ‘‘The Silicone Generation.’’

Franklin’s case is by no means unique. Davis describes several similar women whom she has interviewed about their cosmetic surgery, including ‘‘Susan,’’ who had breast im- plants after feeling unusually flat-chested, learning that her mother and various other rela- tives have had implants, and being encouraged by her mother (
Reshaping the Female Body,
124).

when, as seems likely, she has the surgery at a later date. (She may not have long to wait until a surgeon agrees to operate—two thousand girls aged under eighteen had breast implants in Britain in the year 2000.)
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The choice to have breast implants is relevant to justice because it takes place in the context of profound patriarchal influence.

The quotation from Jenna Franklin illustrates the two problems with the prioritization of second-order autonomy highlighted in the first part of this chapter. Franklin’s statement—‘‘When I was about to turn 15, I saw so many people having it done that I wanted mine bigger as well’’—suggests that her desire for breast implants is the result not of autonomous choice but of socially formed preferences: the power of example has cultivated in her a desire for conformity. Once the surgery has been performed on Franklin, moreover, it adds to that influence. The more women have breast surgery, the more it is acceptable or even expected that other women have breasts of a certain size and shape, and that those are achieved through surgery if they do not happen naturally.
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On the other hand, Franklin’s claims—‘‘I want to be famous. And I don’t think you can be famous without boobs’’ and ‘‘Every other person you see on television has had implants. If I want to be successful, I need to have them, too’’—illustrate the second problem with the priori- tization of second-order autonomy: people might autonomously choose to follow harmful norms because they believe they cannot access a desired benefit without complying with the norm. The claim here, then, is not that women who want breast implants must be suffering from ‘‘false consciousness.’’ Franklin may be right in thinking that breast implants are crucial for fame, just as the women who practice
fgm
are right in thinking that mutilated genitals are crucial for mar- riage. Indeed, the more women have breast implants, the more it actu- ally is the case that they are requirements of success for women like

Chaudhuri and Mahey, ‘‘Silicone Generation.’’ In the United States in 2005, 3,446 women under eighteen had breast implants, and 434 women under eighteen had ‘‘breast lifts.’’ Women under eighteen had 2 percent of all cosmetic procedures and 0.9 percent of all breast implants. Breast implants were the fifth most popular procedure for women under eighteen, after rhinoplasty (nose reshaping), otoplasty (ear reshaping), breast reduction, and liposuction. Note, however, that the statistics for rhinoplasty, otoplasty, and liposuction in- clude both women and men, such that breast implants may rise up the ranking if the statis- tics were broken down by sex (The American Society for Aesthetic Plastic Surgery,
Cosmetic Surgery National Data Bank Statistics 2005
, 10).

This point is also made in Bordo,
Unbearable Weight,
xxv, and Kathryn Morgan, ‘‘Women and the Knife,’’ 165, 174–75.

Franklin. This requirement is felt by educated, middle-class women, not just by those who want to be famous: British plastic surgeons re- port that young women are increasingly having breast implants in preparation for university. For such women, a certain sort of appear- ance is thought to be ‘‘important in society,’’ and cosmetic surgery is seen as ‘‘helping them achieve more in their education and careers.’’
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The answer, then, is not to educate women but to alter the social circumstances that justify the harmful practice, and banning the prac- tice is a good way of doing this. Gerry Mackie gives an incisive account of the similarities between
fgm
and footbinding. Mackie argues that both practices require women and girls to undergo severe physical harm in order to secure the benefit of marriage. It follows, Mackie argues, that it remains rational for each woman or girl to undergo
fgm
or footbinding as long as the norm remains in place. As long as both men and women prefer marriage to nonmarriage, and as long as wom- en’s life chances are dependent on marriage, ‘‘they are trapped by the inferior convention. . . . However the custom originated, as soon as women believed that men would not marry an unmutilated woman, and men believed that an unmutilated woman would not be a faithful partner in marriage, and so forth, expectations were mutually concor- dant and a self-enforcing convention was locked in.’’
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In other words, the only way for most individuals to escape a social norm that is a requirement for achieving social status (such as marriage) is in a con- text of (near-) universal noncompliance so that the norm ceases to func- tion. Otherwise, there will always be an incentive for an individual to follow the norm and thus increase her status. A complete ban would be necessary if the society were to reach the position where no individ-

ual had an incentive to harm herself.
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At this point, Nussbaum and other political liberals have two op- tions. Nussbaum could recognize that her political liberalism does not allow her to ban consensual
fgm
; or she could conclude that her argu- ments about the social formation of preferences and the existence of harmful social norms lead to a more complex conception of justice and

Plastic surgeon Professor Kefah Mokbel, quoted in Sarah-Kate Templeton, ‘‘Girls Take to Surgery so They Can Face University.’’

Mackie, ‘‘Ending Footbinding and Infibulation,’’ 1008.

For a similar argument concerning male circumcision, see Sarah E. Waldeck, ‘‘Social Norm Theory and Male Circumcision,’’ 57.

autonomy, one which conflicts with a politically liberal state. The first option would require Nussbaum to become like other Rawlsian politi- cal liberals who do not share her feminist concerns and her insights into social norms. Following this option might restore the consistency in Nussbaum’s account. But her arguments about social preference formation are compelling. In making them, Nussbaum rightly identi- fies the limits of more minimal forms of political liberalism, which leave a great deal of substantive inequality intact, and do not provide individuals with the resources they need in order to overcome that inequality. Taking this option, then, would mean that Nussbaum’s work would lose the substantial benefits it has over alternative accounts of liberalism, and would limit the extent of Nussbaum’s feminism.

The second option, then, is for Nussbaum to recognize that if justice is about enabling people to make autonomous choices about their way of life in conditions of equality, then justice does not require a politi- cally liberal neutral state which makes no judgments about the content of a way of life—
even if autonomy is understood only in the second-order sense.
The fact that preferences are socially formed in ways that can perpetuate harm and inequality means that the state must pay atten- tion to the manner of that formation and take more radical action where it is required to secure justice. As an individual’s ability to form, revise, and pursue her way of life is constrained by the social formation of her preferences and the need to comply with harmful norms, the goal of state action should be to ensure that these constraints do not perpetuate harm, inequality, or both (unequal harm). Liberals should not use an appeal to autonomy to excuse and justify inequality.

How might such state action be formulated? I propose that two con- ditions are individually necessary and jointly sufficient for state inter- ference in practices that harm the choosing individual. The first condi- tion is that the practice in question is significantly harmful. In order to have a possible case for state interference, we need to be sure that the harm involved is sufficiently severe to merit state action. The premise here—which most liberals would, I think, accept—is that some degree of state paternalism is justified: that the state should at least regulate very harmful or dangerous activities such as drug-taking or driving. Drawing the line between harm that is not sufficient for state action to be considered and harm that is will not be easy, but states do in fact

make such distinctions,
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and it seems that the harms involved in breast implants are enough at least to make us consider intervention. Having identified a practice as a candidate for intervention, then, we ask whether there are any good reasons for individuals to follow the practice, reasons that outweigh the costs involved. Some practices have costs that individuals may choose to accept in return for a benefit. Thus taking the contraceptive pill, for example, brings with it various health risks, such as an increased risk of thrombosis, which may be fatal; but it also brings the benefit of being able to control one’s fertility, along with some beneficial side effects such as a decreased susceptibility to certain forms of cancer or severe period pain. Similarly, pregnancy and childbirth entail health risks and sometimes even cause the death of the pregnant woman; but pregnancy and childbirth also lead to the deeply valuable good of motherhood. In both cases, then, significant risks are accompanied by significant benefits which are not purely so- cial, and so it is appropriate for individuals to decide for themselves whether the benefits outweigh the risks.

Conversely, the state should intervene to prevent the harmful prac- tice if its benefits depend on the acceptance of a social norm— particularly one that is unequal or unjust. Even (indeed, especially) if it is true that breast implants will enhance Franklin’s career prospects and her sense of self-worth, or that
fgm
will enhance a woman’s mar- riage prospects, the only reason for these connections is the concept of female success or desirability endorsed by the relevant society. Because this norm of female success is also endorsed by men, who do not fall within its scope and so do not undergo harmful practices in order to comply with it, the injustice is magnified. Nobody should have to harm themselves to receive benefits that are only contingently related to that harm, and where the contingency is a social one. This is for the simple reason that harm, by definition, is to be avoided where possible; and where it is only a social norm that requires the harm, it is clearly within the scope of social action to limit that harm. Moreover, without a state ban ensuring universal noncompliance, any individual will face pres- sures to comply with the norm in order to receive the social benefit.

For example, Van Lenning argues that it is possible and desirable to distinguish bodily practices according to the extent of the damage they do. Thus she argues that dieting and anorexia can be distinguished for the purposes of normative critique since anorexia but not dieting ‘‘can lead to irreparable damage and death,’’ and distinguishes high heels from cos- metic surgery on the grounds that the former and not the latter cause
reversible
harm (‘‘The System Made Me Do It?’’ 550).

An example can illustrate this point. Smoking is physically harmful. It also has benefits that may lead people to choose to smoke. Some of those benefits are social: the wish to look cool, for example, or Rachel’s desire to gain favor with her manager. As a result, the state should try to adjust social norms in this respect by banning or regulating cigarette advertising, or through antismoking campaigns. Perhaps, in Rachel’s case, the company ought to instigate alternative rituals for informal discussion and networking, such as the common-room tea-drinking favored by David’s Oxford college. Some benefits of smoking, however, are not social: they result from the chemical effects of nicotine in the body, and the pleasurable physical sensation of inhaling smoke. As such, some people might autonomously choose to smoke (leaving ad- diction aside) even if there were no
social
advantages to doing so. The benefits of smoking, then, are not contingent on a particular social norm, much less an unequal one, and thus do not rest on an injustice, and so it may be proper in such cases to leave individuals to choose whether the harms are worth the benefits to them.
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Breast implants, on the other hand, are beneficial only inasmuch as they increase the career options, self-esteem, or sexual status of the woman who has them. As these benefits are norm-dependent,
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society has a much greater duty of care over individuals who might be per- suaded by such norms. Because an inequality is involved, the position becomes even clearer: the benefit is socially contingent; and moreover, only women are socially encouraged to undergo this harmful practice in order to receive the benefit.
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Specifically, nobody (in this case, women) should have to harm themselves (by undergoing breast sur- gery or
fgm
) in order to receive benefits (such as a successful career, a sense of self-worth, or the ability to be married) that, for other mem- bers of society (in this case, men) do not carry similarly harmful re- quirements. Where the harm is so significant that state intervention would not be grossly disproportionate, the state should prohibit such practices.