Sex, Culture, and Justice: The Limits of Choice (3 page)

17. Ibid., 19. 18. Ibid., 132.

Overall, then, though Benhabib’s founding assumptions (strong universalism combined with sensitivity to cultural particularism and an awareness of social construction but a refusal to submit to cultural relativism) and her conclusions (in general, a firm commitment to egalitarianism and autonomy) are laudable, and in line with my ap- proach, her method of discourse ethics is less successful.

Deliberative democracy—or in Rawlsian terminology, public rea- son—is also a feature of another variety of liberalism that feminists have retheorized: political liberalism. Political liberals attempt to com- bine the liberal commitments to both universal equality and individual choice by employing a political/comprehensive distinction, according to which freedom and equality must apply in the political sphere, to individuals
qua
citizens, but need not apply to the sphere in which individuals choose and live out their comprehensive conceptions of the good. It is compatible with political liberalism, then, if individuals live in hierarchical groups, as long as those hierarchies are not carried over into citizenly activities such as voting or adhering to the law. In effect, political liberalism involves a restriction of the scope of equality: rather than applying to all aspects of life, equality is required only in the politi- cal sphere.
19

Political liberals also try to avoid privileging any particular substan- tive moral position by basing their liberalism on the notion of consen- sus. Political liberals argue that people who hold many different con- ceptions of the good can nevertheless agree on liberalism as the best
political
doctrine, and that this agreement can be based on different things for different people. Liberalism prevails, then, without a particu- lar conception of the good prevailing. However, the problem with this approach is that we have no guarantee that liberalism and liberal values will be the result of the overlapping consensus, if the outcome of that consensus is not stipulated in advance. While political liberalism claims support from a variety of comprehensive doctrines, rather than on universal acceptance of substantive liberal values, there are in fact claims to universality behind the values on which it rests that under- mine its claims to accommodate choice. Feminist political liberal Drucilla Cornell, for example, writes that ‘‘political liberalism must find a way to justify a liberal and thus tolerant attitude toward non-

1. This facet of political liberalism is complex, particularly as regards gender equality, and I consider it in greater detail in later chapters.
   

   liberal, yet decent, nations. Otherwise, political liberalism can rightly be charged with being illiberal because it imposes a view of the good associated with Western ideals of democracy that other countries and cultures do not accept.’’
   20
   Cornell’s claim is that political liberalism ought to tolerate decent cultures that do not conceive of their members as equal.
   21
   Nonetheless, she asserts, ‘‘There certainly is basis for opti- mism that nations could reach an overlapping consensus that one of the universals that must be recognized by all cultures is the equivalent evaluation of feminine sexual difference.’’
   22
   But if the ideals and values of different cultures are what is doing the work rather than an anteced- ent notion of the universal value of gender equality, there is surely more evidence of an overlapping consensus on women’s inferiority. Most if not all societies are highly and hierarchically gendered: even liberal societies have not fully embraced women’s equality, as Cornell agrees.
   23
   It is therefore difficult to see how an overlapping consensus on women’s equality could emerge in dialogue between actually hierar- chical liberal societies and explicitly hierarchical nonliberal societies. As with discourse ethics, political liberalism’s attempt to take account of the fact of social construction and difference through the mecha- nism of choice results in a conflict with its other normative value of equality. One or the other will have to give way: either equality takes precedence regardless of the actual views and choices of those involved in dialogue, or the results of the dialogue are taken to be the require- ments of justice even if they entrench inequality.
   

   Will Kymlicka has a different strategy for combining the liberal com- mitment to choice with an awareness of social construction. He argues that particular cultures within liberal societies provide the context within which individuals can make choices and exercise autonomy, and that they therefore require protection. Without a cultural frame- work, Kymlicka argues, individuals do not have the raw materials from which to forge autonomy: ‘‘Freedom involves making choices amongst various options, and our societal culture not only provides these op- tions, but also makes them meaningful to us.’’
   24
   Kymlicka combines
   

2. Drucilla Cornell,
   At the Heart of Freedom,
   153.
   

3. This understanding is derived from Rawls’s use of the idea of a decent nonliberal people in
   The Law of Peoples.
   

4. Cornell,
   At the Heart of Freedom,
   163–64.
   

5. Ibid., x.
   

6. Will Kymlicka,
   Multicultural Citizenship,
   83.
   

this claim with a strong argument that liberals must value autonomy. He discusses the conflict between the values of autonomy and tolera- tion, a conflict that is exemplified in the dilemma of whether liberals should tolerate cultures that suppress individual autonomy, and argues that what distinguishes liberalism is precisely its commitment to indi- vidual rather than group autonomy.
25
Liberals must therefore tread a delicate line: on the one hand, they must protect individual autonomy from illiberal cultural groups, but on the other hand, they must protect cultures, since their continued existence is a prerequisite for au- tonomy.

I endorse much of Kymlicka’s argument as outlined in the previous paragraph. As Part One shows, I agree that autonomy is developed in a social context, and that the nature of an individual’s ability to choose is shaped by her particular cultural memberships. I also agree with Kymlicka that liberalism must be committed to individual autonomy as opposed to group autonomy, as will become clear throughout Part Two. However, Kymlicka’s strategy for treading the delicate line be- tween group and individual protection is problematic, for several rea- sons. It is not always easy to tell precisely what Kymlicka’s normative policy proposals are. At times he appears to favor a strong universalist liberal approach, such as when he argues that an individual must have ‘‘the freedom to move around within one’s societal culture, to distance oneself from particular cultural roles, to choose which features of the culture are most worth developing, and which are without value,’’
26
and when he argues that we should ‘‘seek to liberalize’’
27
illiberal cultures and nations. Elsewhere his proposals are rather more limited. Despite endorsing the need to liberalize, Kymlicka cautions that ‘‘there is rela- tively little scope for legitimate coercive interference.’’
28
This limitation is not confined to the sphere of international intervention: according to Kymlicka, even within one state, a national minority (as opposed to an immigrant group) which is illiberal should nonetheless be permit- ted to govern its own affairs as it sees fit. Even though a ‘‘national minority which acts in an illiberal way acts unjustly,’’ still the most the majority state should do (barring extreme cases such as torture or slav- ery) is ‘‘speak out’’ or offer ‘‘various incentives’’ to change.
29

25. Ibid., 158.

26. Ibid., 90–91.

27. Ibid., 94. 28. Ibid., 167. 29. Ibid., 168.

The general distinction that Kymlicka makes between national mi- norities and immigrants, with the former given greater scope for illib- erality than the latter, is problematic because it relies on the concept of choice. This reliance does not sit easily with Kymlicka’s own account, since not only do his arguments about the cultural context of choice undermine the extent to which choice can be a legitimator of culture (a theme that runs throughout this book), but also choice does not function in the required way when discussing groups that persist through generations. Kymlicka wishes to show that immigrants have a greater obligation to assimilate and liberalize than national minorities because the former and not the latter
chose
to enter the liberal society. The normative role of this sort of choice is so strong that it may even justify allowing certain groups, such as the Amish and the Hutterites, to impose the usually forbidden internal restrictions on their own members, on the grounds that these groups historically agreed to be part of wider liberal / American society only on condition that such group autonomy was allowed.
30
But this approach contradicts what Kymlicka rightly identifies as liberalism’s insistence that the correct unit of analysis when protecting autonomy is the individual and not the group.

We can identify two types of things that an
individual
member of a group might consent to: first, her membership in the group or in the wider state, and second, the particular practices of, or restrictions im- posed by, the group or the wider state. Kymlicka’s claim is that previous members of groups such as the Amish consented to membership in American society only on particular conditions (namely, the ability to impose certain practices on their members in perpetuity). In order to consider these historical agreements as binding, Kymlicka must argue:

1. internal restrictions are valid if group membership is consented to (something like the freedom of exit claim criticized earlier);
   

2. the choice to be a member of a group is more important than being able to choose the particular practices of a group (without this claim then freedom from internal restrictions would be more important to the Amish than their choice or otherwise to be citi- zens of the United States);
   

3. agreements made by ancestors are binding on descendants—
   

   30. Ibid., 170.
   

   even if those agreements explicitly constrain the descendants’ au- tonomy;
   

4. and it is unjust if an individual is a member of a group or state to which she has not consented or whose terms she has not agreed (and thus unjust if the Amish must assimilate into U.S. society on terms which they did not agree).
   

Each of these claims is problematic, although not all problems can be discussed now. The first has already been criticized, and is investigated at length in Chapter 4. The second is a complex claim that forms the basis for discussion over several chapters in Part Two. The third is highly controversial and the subject of an emerging literature that can- not be engaged with here;
31
suffice to say that Kymlicka does not argue in its favor in
Multicultural Citizenship
and so the case is still to be made. The case needs to made, however, if the fourth is to work. For once we consider the individual as the unit of autonomous choice, it seems that
no one
has consented to membership in their initial cultural group (which, according to Kymlicka, shapes an individual’s very abil- ity to choose and which they can rarely or barely leave), and
no one
has consented to membership in their state except
first-generation
immi- grants, settlers, and state-builders. In each and every category of group, the only individuals who can conceivably be considered voluntarily to have chosen membership in the group and consented to its terms are the first generation (more realistically, certain privileged members of the first generation). But if, as Kymlicka’s account implies, it is unprob- lematic for descendants of immigrants and national
majorities
to be members of a state to which they did not consent (perhaps on the condition that the state is liberal), it must be similarly normatively un- problematic for national minorities and groups with historic agree- ments to be compelled to liberalize. Certainly, it does not make sense to hold back on the requirement to liberalize on the grounds of individ- ual choice.

Once again, then, a liberal argument that recognizes the cultural construction of choice ends up relying on choice to make crucial nor- mative distinctions, and problematically uses choice to assess the jus- tice of a culture that has been shown itself to shape the very ability to

31. See, for example, David Miller, ‘‘Holding Nations Responsible,’’ and Daniel Butt,
Recti- fying International Injustice.

choose. I do not wish to suggest that choice and autonomy play no normative role: I agree with Kymlicka that some commitment to auton- omy is necessary for liberalism. But I do argue that arguments based on choice cannot justify certain sorts of restrictions that are imposed on individuals or disadvantages that they may suffer.

Part Two thus considers alternative liberal ways of approaching the connection between sex, culture, and justice. I consider different liberal and liberal feminist ways of understanding the connection between choice and justice in the context of social construction. Although this book cannot hope to offer a comprehensive analysis of contemporary liberalism, it considers a range of views, focusing on those liberals who, for varied reasons, share something with my approach. My inten- tion is to show that while each form of liberalism goes some way toward securing universal freedom and equality in the face of social construction, no one approach goes far enough. In their place I offer my own.

PART ONE

theories of social construction

1

creativity
,
cultural practice
,
and the body
:

foucault and three problems with the liberal focus on choice

In Part One I consider the phenomenon of social construction in more detail, and outline how it impacts on liberal assumptions, through the work of thinkers who are neither liberal nor usually engaged with by liberals. In this chapter I discuss Michel Foucault, and show how a Foucauldian approach undermines the notion of choice as what I call a normative transformer: a concept that transforms an unjust situation into a just one. I argue that Foucault’s work highlights three problems with the liberal focus on choice. First, because choice is individual, liberalism’s focus on choice marginalizes its social location in culture. Second, because choice is mental, liberalism’s focus on choice margin- alizes the role of physical embodiment. Third, because liberalism con- ceives of choice as the absence of (state) constraint, liberalism’s focus on choice ignores the creative elements of power.