Sex, Culture, and Justice: The Limits of Choice (38 page)

the statement ‘‘X is influenced by Y to choose P.’’ Y could be the state, but even if there is no deliberate state influence, the individual will still be influenced by nonstate forms of social construction. It therefore cannot be the case that the choice of P is valuable only if no Y exists. And, as Sher points out and as I have argued, perfectionist state action, if performed according to liberal principles,
benefits
the individuals whose actions are constrained by rendering their options more compat- ible with their own equality. Antiperfectionism is equivalent to arguing that the state should not take ‘‘(benign) advantage of a causal process that would occur anyhow,’’
43
and this argument is rather perverse. If a process will occur anyhow, better that it does not undermine justice and equality.

It cannot be the case, then, that a putatively valuable practice or way of life loses its value if it is not autonomously chosen, where ‘‘autono- mously chosen’’ means ‘‘chosen free from influence or encourage- ment.’’ But a perfectionist might still want to argue that the value of a practice is lost if it is
coerced.
Sher’s strategy for overcoming this prob- lem is to argue that citizens may come to advocate the reasons for the state-imposed choice
after
it has been imposed on them and that if that happens, the choice becomes autonomous.
44
While such conversions may indeed occur, they do not undermine the fact that, at least at the point of state imposition, individual autonomy is overruled. My re- sponse is to argue that while it is
more
valuable if a practice is chosen, a practice need not lose its value entirely if it is coerced. The value will be lost in some cases but not in others. There may well be little value in a coerced apology or a coerced friendship, since apologies and friendship derive most (but not all) of their value from their freely given and sincere nature. But imagine that a violent husband is or- dered by a court to attend a course on anger- and violence-manage- ment. While it would be more valuable if he had voluntarily attended such a course prior to the court’s order, since he would be displaying a genuine wish to change his behavior (which might even make the course more likely to succeed), it does not follow that there is no value whatsoever in his attending the course by coercion. As long as the course has some effect in reducing his anger and violence, it has value

43. Ibid.
,
73.

44. Ibid.
,
63.

despite having been coerced. In such cases, it is more valuable that a practice is followed by coercion than that it is not followed at all.
45

My approach differs in focus from contemporary liberal perfection- isms, then, in several ways. My focus is on proscription and discour- agement (of injustice) rather than on prescription and encouragement (of perfection). More important, my approach recognizes social con- struction, but not the social forms thesis with its conservative and con- straining normative implications. Finally, my approach recognizes the difference between first- and second-order autonomy (unlike perfec- tionism based on the social forms thesis)—and (unlike political liberal- ism) does not ignore the value of first-order autonomy.

45. Or, as in the breast implant example, it is sometimes more valuable that a practice is rejected
coercively
than not rejected at all.

conclusion

Fashion followers are having collagen implanted into the soles of their feet and bones removed to wedge their tootsies into the latest Jimmy Choos or Manolo Blahniks.

Some women have even requested toe removal, although most surgeons draw the line at this dramatic procedure. . . . Dr Sherman Nagler, who runs a practice in Houston, defends the wishes of these women: ‘‘Someone who’s embarrassed or unwilling to wear an open shoe because their toe is crooked deserves the same respect and concern as someone who has a big bump on their nose and wants plastic surgery.’’

—
amy lawson
, ‘‘Shoe Lovers Put Feet under the Knife’’

Manolo Blahnik has a rare gift: he knows how to make women happy. Truly happy. Why else would a heavily pregnant Sarah Jessica Parker emerge from her nest to present the shoe designer with an award in New York last October? Despite the fact that she was due to give birth that day, she turned out in a black taffeta YSL dress, her miraculously unswollen ankles teetering on black, strappy Manolo stilettos.

—
tamsin blanchard
, ‘‘High on Heels’’

In the introduction, I compared the cases of the fraudulent Mexican plastic surgeon and the Oxfordshire foot survey. The first epigraph to this chapter suggests that the cases are even more similar than I sug- gested. A growing trend in America is cosmetic surgery on the feet, designed either to remedy the effects of constant high-heel wearing or to modify the feet so as to facilitate ever more extreme shoes. A number of cosmetic surgeons and podiatrists are performing operations for purely cosmetic reasons, ranging from toe straightening and bunion removal to collagen implants on the ball of the foot so as to cushion it when in high heels, shortening second and third toes which are ‘‘unat- tractively’’ longer than the big toe, and shortening or removing little toes so as to allow ever more pointy shoes to be worn.
1

These practices share many features that I have discussed in this

1. See Beth Landman Keil, ‘‘Toe Job’’; Kate Kelly and Shelly Branch, ‘‘Heels from Hell’’; Lisa Tolin, ‘‘Foot Fault’’; and Olivia Barker, ‘‘Cosmetic Toe Surgery Worries Some Doctors.’’
   

   book. Like cosmetic surgery more generally, women engage in foot surgery to feel both normal (‘‘Deborah Wilton was so embarrassed by her toes, she used to bury her feet in the sand when she lounged at the beach’’)
   2
   and extraordinary (‘‘Wright Breece bought one wickedly tall pair after a salesman cooed ‘just sit at the bar, cross your legs and reel in the fish’’’).
   3
   Women wear high heels despite the pain they experience so as to gain access to socially defined benefits or so as to comply with social norms. (‘‘‘I’m on my feet all day but I will not not wear high heels,’ says Tracie Fiss . . . who rigs her pointy designer shoes with pads and special inserts. ‘It’s worth it. It’s the price of fashion.’’’)
   4
   Feet, just as much as any other part of the body, are deemed worthy of repeated disciplinary attention. (‘‘Exfoliate, exfoliate, moisturize, mois- turize. . . . Everyday you should exfoliate and moisturize.’’)
   5
   Like many other beauty practices, high heels become pleasurable despite their dis- advantages (Sarah Jessica Parker declares them more long lasting than marriages, Madonna claims they’re better than sex).
   6
   Both high heels and foot surgery can be harmful (toe straightening can make pre- viously painless feet painful, and high heels cause problems with the feet, legs, and back).
   7
   Finally, the availability of the practice and its growing normalization fuels demand and thus further normalizes the practice. (‘‘In Houston, Dr Sherman Nagler says cosmetic surgeries make up 10 percent of his 200-patient-a-week practice. Five years ago, he says, such procedures were unheard of. He attributes the rise in numbers to advances in surgical techniques, a growing acceptance of plastic surgery and the foot-baring shoes now in fashion. ‘The shoes they wear in ‘‘
   Sex and the City
   ’’ probably make people more aware of their feet,’ he says.’’)
   8
   

   To make sense of these issues, I have argued that liberal justice— based on some form of autonomy and equality—cannot be realized without taking account of social construction. Social construction oper- ates on both individuals and their surroundings. Individuals are so- cially constructed in the sense that their preferences and identities are
   

2. Tolin, ‘‘Foot Fault.’’
   

3. Kelly and Branch, ‘‘Heels from Hell.’’
   

4. Ibid.
   

5. Rebecca Rankin, ‘‘Get Your Winter Feet Fit For Summer.’’
   

6. Blanchard, ‘‘High on Heels.’’
   

7. Barker, ‘‘Cosmetic Toe Surgery.’’
   

8. Tolin, ‘‘Foot Fault.’’
   

   formed in response to particular social contexts and norms. Social con- struction does not impurely impinge upon an otherwise fully autono- mous, pure subject, but rather creates and constitutes that subject. There can be no subject without social construction. However, this is not to say that social construction is normatively neutral. Social con- struction can be more or less compatible with justice, as it can be more or less compatible with equality and autonomy. The sort of autonomy that is in question, then, is not an individual’s ability to derive her principles, preferences, or way of life from the ground up, with no social influence—for that would be impossible—but rather the extent to which an individual’s social construction is compatible with her choosing from a varied set of ways of life—her second-order auton- omy—and the amount of choice that is available to her within any particular way of life or comprehensive goal—her first-order autonomy. These considerations also apply to the second element of social con- struction: the social construction of options. I argued that even a per- fectly rational, freely choosing individual is constrained by the fact that she must choose from the options that are available to her, and that are cast as appropriate for her. These options themselves may be lim- ited; or they may violate an individual’s well-being or her equality, since in order to access some benefit, the individual may be required to harm herself, and she may be required to harm herself when no such re- quirement is placed on other types of individuals seeking to access the
   

   benefit.
   

   Moving to an argument of greater specificity, I then proposed the theory of the insufficiency of free choice as a way of responding to the general issues just outlined. Liberal theory tends to view choice as a normative transformer: a concept that renders an outcome just by its presence. In the light of social construction, however, choice often can- not be a normative transformer. Instead, the phenomenon of social construction should actively affect the legislative agenda when two fac- tors are present: the disadvantage factor and the influence factor. The disadvantage factor occurs when an individual or group of individuals suffer disadvantage as a result of their own choices—particularly (though not only) if the disadvantage is severe, enduring, and related to the advantage of those who choose differently. The influence factor occurs when there are identifiable pressures on the choosers to make the disadvantageous choice. Where both factors are present, the disad- vantaged suffer from an injustice, and the liberal state ought to inter-
   

   vene. State intervention in such cases could attempt to mitigate either the disadvantage factor, the influence factor, or both together. This general model is the basis for all the specific policy proposals I make in the book.
   

   Moving to a yet more specific argument, I proposed the idea of the equality tribunal as a response to one sort of injustice identified by the insufficiency of free choice: the fact that individuals are sometimes treated unequally by their religious or cultural groups. This phenome- non is a clash between second- and first-order autonomy: one’s second- order choice might be to remain a member of a particular cultural or religious group, but this need not mean that one has first-order autonomously chosen all of the specific norms and rules of that group. In particular, there should be no obligation on individuals to accept norms of gender inequality—norms that would, in other contexts such as employment—be rightly condemned by the liberal state.
   

   As a remedy, I proposed that an equality tribunal should operate, run along lines similar to employment tribunals. Individuals would be able to go to the equality tribunal and argue that they had been discriminated against on grounds of sex
   9
   by their religious or cultural group: in other words, that the group had denied them some benefit or imposed some cost which did not apply to members of the other sex. If the case were upheld, the equality tribunal might impose a pen- alty such as a fine on the group, or require it to change its practice (with some more severe penalty for refusal); most important, the tribu- nal would publicly declare the practice to be unjust and unacceptable.
   

   The equality tribunal is a way of mitigating both the disadvantage and the influence factors, and thus both equality and autonomy. Its direct purpose is to enhance equality and mitigate disadvantage via its rulings. It enhances autonomy and mitigates influence, moreover, by giving individuals more first-order autonomy, more ability to decide, within their second-order choice of a way of life, which elements of that way of life are of value to them. Individuals who genuinely wish to live according to inequality can do so, either by not attending the tribunal or, if previous tribunal rulings have given them equal rights, by choosing not to take up those rights. Their autonomy is not, there- fore, affected. For those individuals who do wish to live equally within their groups, autonomy is greatly enhanced.
   

9. Discrimination along other lines might also be legislated for, but in this book I have focused on sex discrimination.
   

   Finally, I argued that some cases of unjust social construction should be remedied by proscription. In particular, I proposed that prac- tices that harm the choosing individual should be banned where, first, the harm involved is sufficiently severe that proscription would not be vastly disproportionate
   and,
   second, the only reason for the individual to choose the harmful practice is to comply with a social norm. The case for proscription is strengthened where the relevant social norm is unjust.
   

   Again, this proposal is an attempt to counter the disadvantage and influence factors, and to enhance equality and autonomy. Harmful practices are clearly disadvantageous: by definition, harm is a disadvan- tage. The cases I discussed, however, are complex in that the disadvan- tage is the route to some further advantage. The disadvantage, then, can best be framed as the disadvantage of being able to access a benefit only by socially endorsed (and otherwise unnecessary) self-harm. Of course, where the social norm is unequal, the disadvantage is even clearer.
   

   The connection between proscription of harmful practices, the miti- gation of influence, and the enhancement of autonomy is more com- plex than in the case of the equality tribunal. The mitigation of influ- ence is perhaps the easiest to see: by banning a previously socially endorsed practice, society thereby lessens the pressure it places on in- dividual to undergo it.
   10
   In cases in which an individual follows the practice so as to achieve a second-order goal, but against her first-order autonomy, proscription enhances her autonomy overall. In other, lim- ited and specific, cases, proscription might limit an individual’s first- or second-order autonomy. However, as autonomy is neither the only liberal value nor worthy of maximization, these cases do not fatally undermine the proscriptive strategy.
   

   In general, the principle behind my argument is that where social norms encourage individuals to harm themselves and to render them- selves unequal, something is wrong. More specifically, what is wrong is best perceived not as an issue of individual choice, flawed reasoning, or psychology but of the society in question. Where the wrong is social,
   

10. To clarify: prohibition of a practice may not remove all pressure to undergo it, since there may be pressure on some individuals to undergo illegal, backstreet procedures such as breast implants, and since banning breast implants, for example, does not thereby remove all social pressure on individuals to conform to appearance norms. Nonetheless, some pres- sure has been removed.
    

    moreover, it can be changed by social action. Kelly and Branch report a podiatrist who has the right idea: ‘‘A lot of times people come in and say, ‘I need surgery to correct this,’’’ says Helena Reid, a Moline, Ill., podiatrist who recommends moderation for heel-wearers with sore soles. ‘‘And I say, ‘No, you need different shoes.’’’
    11
    

11. Kelly and Branch, ‘‘Heels from Hell.’’