Sex, Culture, and Justice: The Limits of Choice (30 page)

1. For an analysis of the ethics of smoking that far surpasses the purposely simplistic treatment given here, see Robert Goodin, ‘‘The Ethics of Smoking.’’
   

2. I argued for the norm-dependence of beauty and sexual behavior in Chapter 1. See also Naomi Wolf,
   The Beauty Myth
   and
   Promiscuities.
   

3. The United Nations goes further, stating in a Fact Sheet that ‘‘the harmful traditional practices focused on in this Fact Sheet have been performed for male benefit’’ (
   Harmful Traditional Practices Affecting the Health of Women and Children
   , 4). The Fact Sheet does refer to
   fgm
   but not to cosmetic surgery. Its omission of Western beauty practices is criticized in Winter et al., ‘‘UN Approach to Harmful Traditional Practices.’’
   

   Although this argument refers to harm, it is not the same as the Millian harm principle. The state should prohibit self-regarding prac- tices (those where no harm is done to others in the Millian sense) if, first, those practices are (significantly) harmful to the individual who engages in them
   and,
   second, if the only benefits of the practice for the individual concerned are the result of acceptance of an (unjust) social norm. Harm to others, then, is not the final justification for state ac- tion. Rather, harm to the actor in question is the premise without which the case for state action cannot be made. If there is insufficient harm, then the state cannot get involved through the mechanism of prohibition, even where the action concerned forms part of an unjust social norm. Applying makeup is a good example: although it results from and perpetuates gendered appearance norms that are unjust, it does not cause sufficient harm to the women concerned to justify a ban. The reason for state restraint in such cases is that the liberal state must maintain proportionality between the harm its actions prevent and the harm caused by the fact of prohibition. In some cases, such as makeup, a state ban would not be proportionate (using nonairbrushed photographs of makeup-free women in state media campaigns or leaflets might). In other cases, such as breast implants and
   fgm
   , the harm involved is sufficient to justify a ban.
   

   Finally, this approach would not fail to respect individuals as desir- ing, choosing agents. Political liberalism is often justified as the only method of providing this respect; however, Nussbaum’s formulation of this point actually compromises respect for others. Nussbaum writes: ‘‘The political conception makes room for . . . inadequate de- sires and respects them, by protecting spheres of choice and aiming at capability rather than functioning.’’
   85
   However, Nussbaum does not take into account the fact that respecting some desires is incompatible with respecting the individual. It is impossible, I contend, to respect such desires while at the same time respecting the desiring person.
   

   Imagine, for example, a woman who is the victim of serious domes- tic violence, but who wishes not to prosecute her attacker. She might believe that he will not attack her again, or she might be afraid that pressing charges will in fact prompt him to attack again if the charges are not taken seriously, or she might be the victim of ‘‘battered woman syndrome,’’ according to which victims of domestic violence ‘‘feel in-
   

4. Nussbaum,
   Women and Human Development
   , 160–61.
   

   tense shame which may make them reluctant to come forward at all, or even to admit to themselves, let alone anyone else, that they are battered women.’’
   86
   Of course, it is crucial that domestic violence is taken seriously by the courts, so that the second fear is unfounded. Once that is the case, though, if we respect such a woman’s desire and refrain from prosecuting her attacker, we fail to respect her as a person. By allowing her attacker to escape prosecution, we effectively under- mine the importance of her bodily integrity and well-being, and thereby undermine the basis for respecting her. Instead, if we are genuinely to respect the victims of domestic violence, we must insist that perpetra- tors are prosecuted and dealt with firmly. As Hirschmann points out: ‘‘Prosecutors [in the United States] allow battered women more discre- tion in deciding whether to prosecute than is normally permitted for violent crime, even in jurisdictions with ‘no drop’ prosecutory policies. While such discretion apparently increases women’s control, and re- spects many women’s belief that domestic violence is a private matter, it also makes women more vulnerable to ongoing threats from their attackers.’’
   87
   Thus, by focusing on choice and refusing to treat domestic violence with the seriousness that is accorded to other violent crimes, we refuse to respect the women themselves.
   

   We must refuse to respect those desires which themselves under- mine respect for the desiring individual.
   88
   We can say that a woman’s desire to have breast implants is not deserving of respect without thereby saying that she is not worthy of respect. Indeed, refusing to respect that desire is a crucial part of our respect for her as a being in her own right, regardless of the size of her breasts, her conformity to beauty norms, or her sexual availability to men. If we say to Jenna Franklin, ‘‘Your decision to enlarge your breasts is one which deserves our respect,’’ we are thereby saying to her ‘‘it is reasonable to believe that women need large breasts in order to be successful, and that belief and the reality to which it refers is worthy of our respect. Moreover, your feeling that you are inadequate with natural breasts, and your
   

5. Hirschmann,
   Subject of Liberty,
   113. See also Friedman,
   Autonomy, Gender, Politics
   , 151.
   

6. Hirschmann,
   Subject of Liberty
   , 116.
   

7. As Seyla Benhabib argues: ‘‘It does not follow that if we respect human beings as culture-creating beings that we must either ‘rank or order’ their worlds as a
   whole
   or disre- spect them by dismissing their life-worlds altogether. We may disagree with
   some
   aspect of their moral, ethical, or evaluative practices without dismissing or holding in disrespect their life-worlds
   altogether
   ’’ (
   Claims of Culture,
   40–41; emphasis in the original).
   

   consequent desire to undergo dangerous and unnecessary surgery, are understandable and worthy of respect.’’ What we should be saying to her, in contrast, is ‘‘you as an individual are worthy of more respect than is compatible with you undergoing breast surgery in an attempt to become successful, and women in general are worthy of more re- spect than is compatible with their bodies being shaped in line with male fantasies.’’ As David McCabe argues, ‘‘On any plausible view of a liberalism grounded in equal respect, my perspective alone cannot be the final criterion for whether an action respects me. That criterion must be determined at least partly by the force of good reasons.’’
   89
   Respect for individuals requires a critical perspective on those desires which undermine individual respect.
   

   The Limitations of Political Liberal Prioritization of Second-Order Autonomy
   

   Overall, then, once a commitment to the universal value of even second- order autonomy is combined with an understanding of social construc- tion—the social formation of preferences and the existence of harmful or unequal social norms—political liberalism as defined by Nussbaum is unsustainable. Nussbaum’s work is a considerable improvement on accounts of political liberalism that fail to recognize the social formation of preferences and fail to criticize social norms. As a result, she and other political liberals should not attempt to maintain consistency by refusing to advocate emancipatory and egalitarian state action. On the other hand, Nussbaum should not be condemned to dodging the conse- quences of her work on preference formation and feminism by making exceptions for practices such as
   fgm
   —exceptions that cannot be con- ceptually justified from within the political liberal paradigm. Instead, work such as Nussbaum’s illustrates the limitations of political liberal- ism as she defines it, and should lead her to abandon it.
   

   In place of politically liberal state restraint, liberals need to recognize that oppression can constitute rather than simply contravene individu- als’ desires, and that social norms can make it rational for individuals to want things that profoundly threaten their well-being and equality. As a result, the liberal state needs to take a stance against some in-
   

8. David McCabe, ‘‘Knowing about the Good,’’ 326.
   

stances of desire formation, going against unequal social norms to se- cure justice. A liberal state should prohibit those practices which cause significant harm to those who choose them, if they are chosen only in response to unjust, unequal norms. Such a state will not be a politically liberal state, but it will be one that best combines individual autonomy with a commitment to liberal equality.

6

paternalism and autonomy

Paternalism has often been thought of as a paradigmatic enemy of both liberalism and autonomy. However, a critical awareness of social construction undermines such rigid antipaternalism.
1
In this chapter, I consider whether and how my proposals are paternalist, and the sense and extent to which they are nevertheless compatible with auton- omy. The discussion is necessarily brief. I cannot hope to do justice to the literature on paternalism and autonomy in this chapter, but aim instead to highlight those features of my account that render it a more acceptable variety of paternalism that does not rule out autonomy.

Paternalism

Although my proposals for the prohibition of breast implants may ap- pear unusual or extreme, most liberals neither advocate the legalization of
fgm
nor oppose all forms of state paternalism. Most liberals accept the need for some state regulation of dangerous practices, even those which are principally harmful only to the practicing individual. For example, when discussing whether Sikhs ought to be exempt from the law requiring motorcyclists to wear helmets, Brian Barry considers but rejects the argument that the law ought not to exist simply because it is paternalistic.
2
Moreover, liberals (as opposed to libertarians) do not tend to argue in favor of abolishing the requirement to wear seatbelts in cars, or regulations on cigarette smoking and drug use (except per- haps cannabis). Why, then, do proposed laws against breast implants face more criticism than laws in these other areas? One possible rea- son, discussed briefly earlier, is that
fgm
is demonized as a non-West-

1. This position has been argued for throughout, but see also Sunstein, ‘‘Neutrality in Constitutional Law,’’ 2.
   

2. Barry,
   Culture and Equality
   , 47–48.
   

   ern practice, whereas Western beauty practices such as breast implants are, by definition, normalized in Western societies. But this cannot explain the general acceptance of other paternalistic laws. More spe- cifically, we might say that breast implants conform to the patriarchal norm that devalues women’s natural bodies and portrays them as ob- jects that require modification for male consumption. This argument is an old, familiar one from feminist analysis. But its relevance to the issue of state paternalism is acute, and undertheorized.
   3
   Take, for ex- ample, the so-called ‘‘Spanner Case’’ of 1990, in which several English men were prosecuted for taking part in extreme but consensual sado- masochistic encounters. The men were convicted, and the conviction was upheld through the appeal system, right up to the House of Lords and beyond it to the European Court of Human Rights. Each court considered and rejected the possibility that a conviction would rely on a demonization of homosexual practices as particularly degraded and deviant, and claimed that heterosexuals committing similar activities would also be convicted.
   4
   

   In his discussion of the case, Richard Green implies that the various courts’ denials of discrimination were not entirely ingenuous. He com- pares the Spanner case with preceding case law, and writes: ‘‘Was the Spanner ruling heterosexist? Why was a husband branding his initials [with a knife] on his wife’s buttocks, with her consent, distinguished from the
   Brown
   [Spanner] case? Branding was one of the acts of the SM club. How many additional acts would this couple have had to engage in, anatomical constraints notwithstanding, before they fell under the [Offences Against the Person] Act of 1861?’’
   5
   Two things are noteworthy about Green’s analysis. The first is that, in labeling the act possibly ‘‘heterosexist,’’ he implies that the conviction was particularly
   advantageous
   to heterosexuals and
   disadvantageous
   to homosexuals. In other words, he assumes that it is better to have the choice to undergo harmful mutilations than it is to enjoy legal protection from such acts. But while it is possible that one or more of the judges ruling on the case was motivated by repugnance for homosexuality, it is by no means clear that banning a harmful practice epitomizes disgust, rather than
   respect,
   for the individual whose body is thereby protected.
   

3. One exception is Sheila Jeffreys’s
   Beauty and Misogyny,
   which argues that beauty prac- tices should be dealt with under the UN framework for responding to harmful cultural prac- tices.
   

4. Richard Green, ‘‘(Serious) Sadomasochism.’’ 5. Ibid., 548.
   

Instead, banning a harmful practice can actually epitomize respect for the protected individuals, in the sense that the ban can stem from a view about human dignity and the worth of the human body. If this is correct, it is interesting to note that the earlier case law cited by Green fits a pattern whereby consensual harm has been permitted when the harm is perpetrated on a woman by a man and forbidden when it is a man who is harmed.
6
In other words, the Spanner ruling may have been not heterosexist but misogynist, with women’s bodies deemed to be less valuable than men’s. In this light the otherwise in- consistent case law becomes coherent. The fact that men were acquit- ted after subjecting their consenting female partners to nipple clamp- ing in one case and branding in another, but convicted after damaging the genitals of other men in the Spanner case and participating in a prearranged fight in another may suggest that, in the eyes of the law, the male body is sanctified and must be protected whereas the female body is fair game, an appropriate surface on which men may etch their fantasies. Without a broader analysis of case law it is not possible to judge how consistently this analysis applies, but it is interesting to note that a similar evaluation is expressed in the disparity with which male and female bodies are treated by obscenity law. Portrayals of the male erection have typically been subject to far greater regulation than the aroused female vulva.
7
The refusal to criminalize heterosexual sado-