Sex, Culture, and Justice: The Limits of Choice (32 page)

Feinberg,
Harm to Self
, xvii.

Another example is what Feinberg refers to as the defamation argument against por- nography: ‘‘It spreads an image of women as mindless playthings or ‘objects,’ inferior beings fit only to be used and abused for the pleasure of men’’ (
Offense to Others,
147).

Friedman,
Autonomy, Gender, Politics,
188.

Gilman, ‘‘‘Barbaric’ Rituals?’’ 56.

do so not because they have a different concept of harm but because they often do not realize that
fgm
is responsible for the harm which they know has befallen them, or because they do not realize that their bodily functions are
abnormally
difficult.

As an example of the first phenomenon, Mackie cites a study of fifty women in Sierra Leone who underwent
fgm
after they had been sexu- ally active: ‘‘All reported decreased sexual satisfaction after the opera- tion, but they were unaware of the causal relationship until informed by the interviewer. Ironically, some of these women had become pro- miscuous in their search for lost satisfaction.’’
28
Similarly, while com- munities which practice
fgm
are clearly aware of, and suffer from, the serious illness and death which befalls some mutilated girls and women, they may not realize that
fgm
is to blame. This lack of knowl- edge can be attributed to several factors: a lack of basic health educa- tion, the fact that
fgm
tends to be practiced universally within any given community so there is no basis of comparison, and the fact that some practicing communities exacerbate the ‘‘universal human reti- cence about discussing matters related to human sexuality’’ by ‘‘power- ful norms of secrecy,’’ such as the idea that women who discuss the practice will be cursed by evil spirits.
29
Once these problems are over- come, there is little if any doubt among practitioners that
fgm
is harm- ful. Mackie describes his experiences with a village in Senegal that abandoned
fgm
(which he terms
fgc
, or Female Genital Cutting) after some of its female members participated in a wide-ranging education program, and recounts an interview with Lala Balde´, president of a local women’s association:

She told me that the women never suspected a causal relation- ship between
fgc
and complications. When girls died, bled, or got infected at cutting, they attributed it to evil spirits; they did not know, for example, that heavy blood loss might retard child development, and gynaecological complications were consid- ered the lot of women.

On hearing of the causal relationship from a source they considered credible, Balde´ told me, it took them 30 minutes of discussion to decide that the causal claim was correct. They

Mackie, ‘‘Ending Footbinding and Infibulation,’’ 1009. The cited study is Olayinka Koso-Thomas,
The Circumcision of Women.

Gerry Mackie, ‘‘Female Genital Cutting: A Harmless Practice?’’ 147–49.

reviewed local history and suddenly realized that incidents of death, haemorrhaging, and infection were immediately associ- ated with
fgc
, and they broke down and wept.
30

This is clearly a case in which the people involved recognize and deeply regret that harm has been done. They practiced
fgm
not because they have a different concept of harm, but because they did not realize what causes the harm.

The second phenomenon, that women may not realize that they have been harmed, is more complex. Consider the following:

Lightfoot-Klein’s initial interviews with Sudanese women elic- ited the response, for example, that urination was ‘‘normal.’’ She then switched to more descriptive questions such as ‘‘How long does it take you to urinate?’’ The answer then was ‘‘Nor- mal—about 15 minutes.’’

The painful surgery, prolonged urination and menstruation, traumatic penetration, and unbearable childbirth accompany- ing infibulation are all accepted as normal. Because it is in- flicted on all girls before puberty they have no basis of compar- ison.
31

In these cases, women do not realize that they have been harmed by
fgm
. However, this is
not
to say that they have a different conception of harm, or that the harms, once revealed, are immaterial to them. They accept their lot because they have no reason to think that it can be changed. Once women do realize that they have been harmed by
fgm
, they are keen to put in place the village-wide declarations that are necessary to abandon the practice, as Mackie’s fieldwork demonstrates. As he aptly puts it: ‘‘If one cannot escape the tragic circumstances of having to suffer a harm in order to obtain a greater benefit, that does not mean that one believes there is no harm.’’
32

To conclude, then, it is by no means clear that different cultures or individuals have different concepts of harm. What is the case is that

Ibid., 147. See also Gerry Mackie, ‘‘Female Genital Cutting: The Beginning of the End,’’ 260.

Mackie, ‘‘Ending Footbinding and Infibulation,’’ 1009. The cited study is Hanny Light- foot-Klein,
Prisoners of Ritual,
22, 59.

Mackie, ‘‘Female Genital Cutting: A Harmless Practice?’’ 150.

cultures and individuals differ in what they see as an acceptable trade- off between harm and benefit, or between harms to some people and benefit to others. Liberal justice precludes most instances of the latter kind of trade-off, in which some people are required to make signifi- cant sacrifices for the benefit of others, and ought to limit the cases where an individual’s access to social benefit is contingent on her will- ingness to harm herself.
33

These points notwithstanding, we are still left with the difficulty of how to deal with individuals who genuinely want to submit themselves to practices that ‘‘we,’’ but not ‘‘they,’’ may see as harmful. Examples might include extreme sadomasochism, extensive tattoos, and the like. While my proposals do not directly impinge on such practices as long as they do not regulate access to social benefits, it is important to show how they fit into my general arguments. The next section suggests a further relevant consideration.

Single-Party versus Two-Party Paternalism

An extremely useful distinction outlined by Feinberg is between single- party and two-party paternalism.
34
In essence, single-party cases are those in which an individual harms herself without assistance from another. Single-party paternalism would therefore proscribe or regulate what an individual could do to herself in this most literal sense. Exam- ples include suicide, drug-taking (although not drug-procurement), and self-mutilation in the most literal sense, such as cutting one’s own arms.

Two-party cases are those in which a second person harms the first with her consent—voluntary euthanasia, sadomasochism, or cosmetic surgery, for example.
35
Many of the cases that I have discussed in this

The most obvious example of a case in which liberal states do require certain individu- als to make enormous sacrifices for the benefit of others is war, particularly wars fought by conscripted soldiers.

Feinberg also refers to the distinction as direct versus indirect paternalism. Dworkin refers to it as pure versus impure paternalism. See Dworkin, ‘‘Paternalism,’’ 65–66.

Feinberg notes that the word ‘‘harm’’ has a different meaning in the contexts of the Millian harm principle and the two-party case. The other-regarding harm proscribed by the Millian harm principle refers to ‘‘‘wrongful injury’’’—i.e., injury that contravenes the will of the harmed individual—whereas the harm proscribed by two-party paternalism is ‘‘the sense of simple setback to interest, whether ‘wrongful’ or not’’ (
Harm to Self
, 11). Thus, as Dworkin also notes, paternalism in the two-party case is not equivalent to the Millian prohibition of other-regarding actions (‘‘Paternalism,’’ 66).

book are of the two-party variety. Moreover, the example of drug-taking demonstrates that many single-party cases rely on prior assistance from a second party (in this case, to procure the drugs). This fact sug- gests a useful principle for my proscriptive proposals: wherever possi- ble, penalties for noncompliance should be imposed on the second party rather than on the harmed individual. So, the penalty should be imposed on the plastic surgeon and not the woman being operated on—or, in cases of extreme sadomasochism, on the sadists and not the masochists.
36

This approach has one main advantage which helps to mitigate lib- eral antipaternalist concerns. The proscribed act is no longer harming oneself, but harming another person (albeit with their consent). This approach declares: ‘‘It is wrong to harm another person. Even if that person asks you to, or tells you that she does not mind, you should not do it.’’ To the cosmetic surgeon: ‘‘Even if a woman comes to you asking you to put her health at risk by performing an operation that serves no medical purpose, it would be wrong of you to do it and you should refuse.’’ To the man who branded his wife’s buttocks with a knife: ‘‘Even if your wife asks you to carve your initials into her flesh, it re- mains wrong of you to injure and objectify her in such a way. She may be within her rights to cut herself with a knife; it is not within your rights, under any circumstances, to perform the cuts, and it is not within her rights to expect that her request that you do so would be granted.’’ Put this way, the proscriptions lose some of their paternalis- tic flavor. They become not a way to patronize individuals and under- mine their autonomy, but a way of preventing one individual from harming another.
37
Such laws do not interfere with an individual’s

Other examples might include prosecuting the pimp and the john rather than the prostitute and the manufacturer of steroids rather than the user. (I say ‘‘might’’ because I have not discussed whether the specific cases of prostitution and steroid use merit proscrip- tion.) Similarly, the Committee on Obscenity and Film Censorship, chaired by Bernard Wil- liams, argued that it should not be a criminal offense for someone under the age of eighteen to attempt to view a film with an ‘‘18’’ certificate, and that the offense should rest with the cinema licensee (
Obscenity and Film Censorship,
158). Finally, it is illegal to perform
fgm
on a girl or woman in the United Kingdom, but it is not an offense for a woman to mutilate her own genitals (Sleator,
Female Genital Mutilation Bill,
32).

Phrased this way, the paternalistic proposals become very similar to the idea, en- shrined in many liberal legal systems, that consent does not justify murder or physical as- sault. Arneson argues that such laws are ‘‘nonpaternalistically justifiable’’ on the grounds that ‘‘the perpetrators of assault have the means to coerce their victims into ‘consent’ (to avert a threatened worse consequence)’’—grounds that bear at least some resemblance to the idea that social norms may require individuals to alienate their first-order autonomy so as to avoid

right to act as she wishes as regards her own body, but interfere instead with an individual’s right to have
others
interfere with her body. Such two-party cases do not involve properly self-regarding harm. They are cases in which one person knowingly and willfully harms another. It is wrong for one person to harm another in the sorts of cases covered by my approach, and right that the law ought to intervene in such cases.

Feinberg, however, finds two party-cases more ‘‘complicated’’ than single-party cases, since paternalist legislation against two-party pater- nalism interferes with the liberty of two people rather than one. Imag- ine that breast implants are prohibited, and that cosmetic surgeons are prosecuted instead of patients. For Feinberg, this invades the patient’s liberty, since she can no longer get breast implants, and her autonomy, since her voluntary consent to the surgery is no longer effective. If the surgeon is the only one who is prosecuted then, Feinberg states, ‘‘[the surgeon] is treated even worse than [the patient], for while both . . . are prevented from doing what they intended to do, it is only [the surgeon] who is punished.’’
38
By saying that the surgeon is treated ‘‘even worse’’ than the patient, Feinberg suggests that the surgeon also loses liberty and autonomy, but to a greater degree than the patient. The implication of Feinberg’s claim is that paternalist legislation is actually worse in two-party cases than in single-party cases, not better as I have sug- gested.

A good example of this problem concerns those people who are un- usually unable to carry out their wishes alone. By ‘‘unusually unable’’ I mean those who are physically or mentally disabled, for example, or perhaps those who are unusually poor. There are many self-regarding actions that all people, even if able-bodied, cannot perform alone. Any woman who wants breast implants is unable to achieve that goal alone: she needs a surgeon, an anesthetist, and so on to perform the operation on her, not to mention a company to manufacture the implants. How- ever, those who are mentally or physically disabled will be unusually unable to perform certain self-regarding actions alone. For example, most people are able to commit suicide without outside help. Unlike breast implants, any materials that are needed are not provided solely

the threatened worse consequence of failing to achieve their second-order goals (‘‘Mill versus Paternalism,’’ 472).