Sex, Culture, and Justice: The Limits of Choice (31 page)

Green cites three cases in which men were harmed, all of which resulted in conviction: in 1882, prize fighting was held to be unlawful (Green does not give the gender of the fighters, but we may safely assume they were men); in 1980, a man was convicted for causing actual bodily harm to another man in a prearranged fight that they had both agreed on beforehand; and the Spanner case. The cited cases in which women were harmed all resulted in acquittal. In 1992, the judge directed the jury to acquit a military man who used nipple clamps and piercing on a woman in a consensual bondage session; and in 1996 a husband who branded his consenting wife’s buttocks with a knife was acquitted. The final case that Green cites in which a woman was harmed is less clear-cut and cannot easily be categorized. In 1934, a man gave a fairly severe beating to a seventeen-year-old woman. The case defies categorization since the woman denied in court that she consented, and since the man was first convicted but then had his conviction overturned. See Green, ‘‘(Serious) Sadomasoch- ism,’’ 544.

The British Board of Film Classification (
bbfc
) has become more lenient in issuing R18 certificates (for films which may be sold only in licensed shops) since its refusal to grant certificates to seven pornographic films was overturned by the Video Appeals Committee (
vac
) in 1998. Nonetheless, even the
vac
’s judgment insisting that the films be allowed demonstrates the belief that the erect penis is more significant than the vagina. It states: ‘‘The distinctions the [
bbfc
] makes . . . seem somewhat insignificant. . . . Is an erect penis in the hands of a woman masturbating a man likely to be less upsetting than an erect penis entering a mouth or vagina?’’ This rhetorical question is clearly meant to be answered in the negative, illustrating that it is the objectification of the penis that may properly be regarded

masochism in the light of the Spanner case may be not heterosexist but misogynist.

Defining Paternalism

The most celebrated formulation of liberal antipaternalism (and the one most responsible for the marriage of liberalism with antipaternal- ism) is John Stuart Mill’s statement: ‘‘The only purpose for which power can be rightfully exercised over any member of a civilized com- munity, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.’’
8
On the face of it, this definition clearly rules out my proscriptive proposals, which exer- cise power over an individual for her own good—a good that could be described in physical terms (to prevent the physical harms which can ensue) or in moral terms (to prevent the individual from participating in, and being defined by, norms of male dominance).

However, several recent discussions have proposed alternative defi- nitions of paternalism that are less applicable to my approach. For ex- ample, Richard Arneson criticizes those philosophers who dismiss, re- ject, or hedge Mill’s formulation and aims to defend it—yet even he reformulates it, and does so in a way that renders my proposals nonpa- ternalist. Arneson writes:

I propose this reformulation of Mill’s antipaternalist principle: Paternalistic policies are restrictions on a person’s liberty which are justified
exclusively
by consideration for that person’s own good or welfare, and which are carried out either against his present will (when his present will is not explicitly overrid- den by his own prior commitment) or against his prior com- mitment (when his present will is explicitly overridden by his

as ‘‘upsetting,’’ regardless of the presence or absence of a vagina (United Kingdom, Video Appeals Committee,
Judgment of Appeals Numbers 15 &16,
30). In 1999 (new regulations have since been introduced) the
bbfc
’s distinctions included the fact that ‘‘‘sight of erections’’’ was restricted to R18 films, and ‘‘the ‘Mull of Kintyre test,’ whereby a film may not be broad- cast that contains a shot of a penis that is more erect than the Scottish peninsula appears on a map’’ (Steve Platt,
Censored,
15). Similarly, Joel Feinberg notes: ‘‘The commercial assump- tion is that the audiences [of pornography] are primarily
men
who will be titillated by scenes of female homosexuality but repelled or threatened by parallel episodes with men, or even by the unveiling of the masculine sex organ’’ (
Offense to Others
, 134; emphasis in the original).

Mill,
On Liberty,
78.

own prior commitment). Mill’s principle states that paternalis- tic policies so defined are always wrong.
9

This formulation renders my proposals nonpaternalist in two ways. First, though it is a consideration, the person’s ‘‘own good or welfare’’ is not the only justification for my proscriptions. Also at stake are equality (the concern that people should not be unequally required or encouraged to harm themselves), justice (the idea that it is unjust if society requires people to harm themselves to receive some benefit), and influence (the idea behind social construction that the desire to self-harm, particularly in response to a social norm, is socially medi- ated and, as a result, an individual self-harmer thereby increases the pressure on others to follow suit). This means that my proposals are also exempt from Gerald Dworkin’s definition of paternalism, accord- ing to which paternalism is ‘‘the interference with a person’s liberty of action justified by reasons referring exclusively to the welfare, good, happiness, needs, interests or values of the person being coerced.’’
10

The second way in which Arneson’s reformulation renders my pro- posals nonpaternalist is that his definition ‘‘excludes from the category of paternalism some types of restriction on liberty ordinarily character- ized as paternalistic.’’
11
The example he gives mirrors my proposals. According to Arneson, proscription of dueling is not paternalistic if it responds to the fact that people would prefer, first, not to have to en- gage in duels but, failing that, their second preference is to respond appropriately to a challenge to duel. In this case, Arneson contends that prohibition of dueling is not paternalistic since it does not restrict anyone’s freedom against their will. It merely enforces existing prefer- ences. To put it another way, the proscription solves a collective action problem—everyone would prefer not to duel, but no one wants to look weak and suffer sanctions by refusing a challenge.
12
Finally, to put it in the language of first- and second-order autonomy, the individuals in Arneson’s example have a second-order desire to maintain their dignity and standing in society, and a first-order desire not to duel. They are

Richard J. Arneson, ‘‘Mill versus Paternalism,’’ 471; emphasis added.

Gerald Dworkin, ‘‘Paternalism,’’ 62. In a later piece, Dworkin argues that paternalism does not in fact have to involve a restriction of liberty. See Dworkin,
Theory and Practice of Autonomy,
121.

Arneson, ‘‘Mill versus Paternalism,’’ 471.

Cass Sunstein makes a similar argument in ‘‘Preferences and Politics.’’

willing to use their second-order autonomy to alienate their first-order autonomy when that is necessary, but they would rather it were unnec- essary.

Phrasing Arneson’s example in this way shows how it mirrors my proposals.
13
First, make the extremely plausible assumption that people would prefer their second-order autonomy not to require them to alien- ate their first-order autonomy—they would prefer not to harm them- selves so as to receive a benefit if they could receive the benefit without harming themselves. For example, assume that women prefer most of all to feel good about themselves (or to become famous, be a model, or attract men)
without
having breast implants
14
but that, if this is not possible, their second preference is to gain those goods
via
breast im- plants. In these circumstances, the second, also plausible, premise needed to complete the symmetry with the dueling case states that it would be possible for women to achieve their second-order goals in a world without implants. In other words, we need to assume that prohi- bition of breast implants will not in itself prevent women from becom- ing famous or feeling good about themselves. As I argued in Chapter 1, there are good reasons to think that female appearance norms are not fixed but rather adapt and shape themselves to different social con- texts. There is therefore no reason to think that a norm of breasts that are large relative to waist and hip size should persist indefinitely, or that only large-breasted women would have access to fame, fortune, or self-esteem in a world without implants. In fact, the converse seems true: the availability of cosmetic surgery reinforces the idea that women ought to look a certain way, and that any deviations from the idea are precisely that, ‘‘deviations,’’ which can—and should—be ‘‘fixed.’’ As one surgeon says in justification of facelifts:

Now, if you can argue that age twenty-five is maturity and you had exactly the right amount of skin coming from the brow

Arneson’s example also mirrors Gerry Mackie’s convention account of
fgm
, discussed at various places throughout the book. See Mackie, ‘‘Ending Footbinding and Infibulation.’’

In order for the comparison with Arneson’s dueling example to work, not all women have to have these preferences. Since Arneson’s account of paternalism refers to the justifi- cation of a law rather than its effect, what matters is whether these sorts of preferences motivate and justify the law, not how widespread those preferences are. Thus, with reference to dueling, Arneson writes: ‘‘Of course, in any actual society not everybody will have this pattern of desires, but if it is this pattern of desires that generates reasons for forbidding dueling, then the antidueling law [even if it is unfair or unjust] is nonpaternalistic’’ (‘‘Mill versus Paternalism,’’ 471–72; phrase in brackets appears thus in the original).

down to the first fold and exactly the right amount of skin coming to the eyelashes . . . and that was normal, then is it normal to allow time to change it, so that the skin begins to slide down over the jaws and the bags begin to show? Well, that’s not the way it was when it was twenty-five, any more than when I painted my house it was natural for me to let it gradually deteriorate. I keep it up—repair and maintenance.
15

Cosmetic surgery responds to some socially inculcated demands for differently shaped bodies, but also creates its own demands by intro- ducing new procedures and adding to the sense that particular physical features are and must be malleable. Undermining cosmetic surgery is one step toward undermining women’s sense that they must have a certain appearance if they are to succeed or be happy.

If we make these extremely plausible assumptions about the breast implant case, it mirrors the dueling case. So, following Arneson’s definition of paternalism, my proposals are not paternalistic and I do not have to respond to his objections to paternalism.
16

My proposals do, however, conform to the far more general and moderate definition of paternalism offered by Joel Feinberg, which states, ‘‘
It is always a good and relevant (though not necessarily decisive) reason in support of a criminal prohibition that it will prevent harm (physi- cal, psychological or economic) to the actor himself.
’’
17
This definition cer- tainly does not exhaustively capture my proposals; among other things, it does not mention the harm that might be caused by making some- one unequal to others. However, the definition contains within itself an escape clause: the harm listed does not have to be the decisive rea- son behind the law in question, but merely one good reason. On this definition, then, my proposals are paternalistic: they are a version of

Blum,
Flesh Wounds
, 76.

If I were to respond to his objections, I would begin by criticizing the fact that Arneson agrees with Joseph Raz that second-order autonomy entails the first-order autonomous choice of ‘‘all the foreseeable consequences to himself that flow from this voluntary choice.’’ I criticize this position at some length in Chapter 7. It is also worth noting that Arneson’s position is in tension, not agreement, ‘‘with the Rousseauian-Kantian tradition which pre- scribes (roughly) that to be autonomous a person must, so far as lies within his power, conform his actions to laws or principles that he has chosen for himself,’’ since some of the foreseeable consequences flowing from an individual’s voluntary choice are that the individ- ual will have to submit to laws and principles that she has not chosen (‘‘Mill versus Paternal- ism,’’ 475).

Joel Feinberg,
Harm to Self,
4; emphasis in the original.

what Feinberg calls ‘‘mixed’’ paternalism: that for which the prevention of self-harm is not the sole aim.

One of the great merits of Feinberg’s approach is that it offers sev- eral ways of categorizing varieties of paternalism. In what follows, I show how my proposals fit in to some other of Feinberg’s categories, and attempt thereby to defend them.

Harm

As just mentioned, my proposals take account of more than merely physical, psychological, and economic harm. Social norms, for exam- ple, can be characterized not only by the actual physical harm they inflict upon the individual, but also by what I call their ‘‘status harm.’’ An individual suffers status harm when she follows a norm that por- trays her as inferior. With breast implants, physical harm and status harm coincide: implants are physically damaging to the woman’s body, and they also harm her by casting her as an inferior being, as a sexual object that serves male fantasy. Physical harm and status harm need not coincide. It would be possible for a woman to respond to sexually objectifying appearance norms in a way that caused no physical harm but did bring her status harm, perhaps by wearing certain clothes or makeup. To take another example, imagine a man who takes steroids to increase the size of his muscles, so as to conform to a normalized image of male strength. If the steroids are dangerous to his health, then he suffers physical harm but not status harm, since the effect of the steroids and the norm is to portray the man as powerful, strong and superior to others. If the man decides to respond to the same male appearance norm by going to the gym, exercising, and lifting weights, creating muscles naturally and healthily, he suffers neither physical harm nor status harm. In this latter case the man is affected by the influence factor but not the disadvantage factor, and has therefore suf- fered no injustice.
18

Which harms, then, are relevant to my proposals? The short answer is that all of them are. With each case, it is a matter of weighing up the harms caused and considering whether they are grave enough to war- rant proscription. In some cases, as liberals would accept, status harm

This case is conceptually similar to the case discussed in Chapter 4 of the middle-class child who never really considers any alternative to higher education.

alone is sufficient for proscription. We can see this by remembering that even Mill ruled out voluntary self-enslavement, and did not give as a reason the fact that physical harm might accrue to the slave.
19
In other cases, again as many liberals would accept, physical harm alone is sufficient—most liberals endorse regulation of drugs via prescrip- tions, and many endorse prohibition of drugs such as heroin and crack cocaine. In each individual case, the level of physical harm and status harm must be considered and weighed up together—remembering Feinberg’s warning that ‘‘wherever a line is draw between permission and prohibition, there will be cases close to the line on both sides of it.’’
20

What distinguishes my proposals, perhaps, is that they combine the harm element with the idea that self-harming practices are unjust if they are performed only in response to a social norm, since in such cases society is both culpable for and able to remedy the harm caused. Although my approach is decidedly normative—via its focus on unjust and unequal social norms as well as the notion of status harm—it is not a species of what Feinberg calls ‘‘Moralistic Legal Paternalism.’’ He defines this approach as follows: ‘‘It is always a good reason in support of a proposed prohibition that it is necessary to prevent
moral harm
(as opposed to physical, psychological, or economic harm) to the actor himself. (Moral harm is ‘harm to one’s character,’ ‘becoming a worse person,’ as opposed to harm to one’s body, psyche, or purse.)’’
21
While it might seem possible to describe both status harm and
unequal
physi- cal harm as moral harm, Feinberg’s bracketed explanation of the term seems to rule out such a description. What Feinberg has in mind—and what he labels as dubious—is the idea that the individual concerned will be somehow corrupted—the sort of argument that may be levied against obscenity.
22
This is not the idea behind my approach. I do not argue that having breast implants will somehow corrupt or deprave a woman, or compromise her moral character; I do argue that it renders her inferior and subjects her to discourses of inequality. As Catharine MacKinnon puts it: ‘‘The concerns of feminism with power and power- lessness are first political, not moral.’’
23

Mill rules out voluntary slavery out of ‘‘consideration for . . . liberty,’’ the fact that one person is under the control of another, not physical harm. See
On Liberty,
171–72.

Feinberg,
Harm to Self,
xv.

Ibid.
,
xvii; emphasis in the original.

See, for example, Feinberg,
Offense to Others,
100.

MacKinnon,
Toward a Feminist Theory of the State,
196.

My approach does share some features with Feinberg’s ‘‘Legal Mor- alism,’’ which states: ‘‘It can be morally legitimate for the state to pro- hibit certain types of action that cause neither harm nor offense to anyone, on the grounds that such actions constitute or cause evils of other (‘free-floating’) kinds.’’
24
The match is by no means exact, since in my approach harm is required. However, I have drawn attention to the fact that, as the result of social construction, one person’s actions necessarily affect others. Thus I argued, following Foucault, that prac- tices such as routine secular male circumcision make sense only in a social context, and that general adherence to such practices makes that practice more acceptable or required for others. Unequal practices do cause harm not only to the individuals directly concerned but also to others who are influenced and portrayed according to those practices.
25
My approach is not, then, a species of legal moralism, but it is sympa- thetic to the basic observation behind it.

Finally in this section, we can briefly revisit the issue of how to define harm, and how to respond to objections that harm is a subjective issue. If harm were subjective, so that one person’s harm is another’s inconvenience or even benefit, this would be extremely problematic for paternalist proposals based on limiting harm. Marilyn Friedman quotes a study that found that ‘‘many Egyptian women . . . expressed no anger whatsoever over having had genital surgery performed on them. These women planned to have it performed on their daughters. They thought that natural adult female genitalia were disgusting and could not imagine that a man would want to marry a woman who had not undergone the surgery,’’
26
and accepts that these finding under- mine the case against
fgm
. Similarly, Sander Gilman objects that cri- tiques of practices such as
fgm
are misguided since they involve ‘‘the projection of Western, bourgeois notions of pleasure onto other peo- ple’s bodies.’’
27
However, Gerry Mackie reports several studies which show, unsurprisingly, that women who undergo
fgm
do value their health and sexual pleasure (even if pleasure is defined simply as the absence of pain) just as Western women do. Women who practice
fgm