The Return of Feminist Liberalism 9781317547952, 9781844652693

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THE RETURN OF FEMINIST LIBERALISM

Also by Ruth Abbey and published by Acumen Charles Taylor

THE RETURN OF FEMINIST LIBERALISM Ruth Abbey

To the memory of the feminist liberals who died too young: Mary Wollstonecraft, Harriet Taylor, Jane English, Jean Hampton, Susan Okin

First published 2011 by Acumen Published 2014 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN 711 Third Avenue, New York, NY 10017, USA Routledge is an imprint of the Taylor & Francis Group, an informa business

© 2011 Ruth Abbey This book is copyright under the Berne Convention. No reproduction without permission. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Notices Practitioners and researchers must always rely on their own experience and knowledge in evaluating and using any information, methods, compounds, or experiments described herein. In using such information or methods they should be mindful of their own safety and the safety of others, including parties for whom they have a professional responsibility. To the fullest extent of the law, neither the Publisher nor the authors, contributors, or editors, assume any liability for any injury and/or damage to persons or property as a matter of products liability, negligence or otherwise, or from any use or operation of any methods, products, instructions, or ideas contained in the material herein.

isbn: 978-1-84465-269-3 (hardcover) isbn: 978-1-84465-270-9 (paperback) British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library.

CONTENTS

Acknowledgements Abbreviations Introduction: the return of feminist liberalism 1. The feminist critique of liberalism

vii ix 1 10

I The feminist liberalism of Susan Moller Okin

2. 3. 4. 5. 6.

Injustices, gender, families Defining Okin’s liberalism He said, she said: the Okin–Rawls debate When liberal meanings are not shared Going global

22 42 61 83 103

II The feminist liberalism of Jean Hampton

7. Contracting for feminism 8. Kantian feminism

120 134

III The feminist liberalism of Martha Nussbaum

9. An original position 10. What women want 11. Capabilities for care

152 165 188

IV Contemporary feminist liberalism

12. In the company of critics: feminist liberalism meets feminist critics of liberalism

208 v

CONTENTS

13. Persuasive universalism and political liberalism 14. Transformative liberalisms

vi

226 248

Conclusion

266

Notes Bibliography Index

277 307 321

ACKNOWLEDGEMENTS

This book took shape in four stages. It began as a proposal for research funding, and I am grateful to Eileen Hunt Botting, Ken Garcia and Rachel Zuckert for feedback at that embryonic stage. Leah Bradshaw, Fred Dallmayr and Mayo Moran were kind enough to write letters in support of my funding applications. Most of the book was written while I was a Faculty Fellow at the Centre for Ethics and Public Affairs at the Murphy Institute at Tulane University, New Orleans. I am grateful to Rick Teichgraber for inviting me to be a Fellow and Meg Keenan for her endless reserves of patience, assistance and kindness. I thank Jennifer Culbert, Doug Portmore and Oliver Sensen for their fellowship. Elizabeth Brake’s remarks at an early stage of the project provided welcome encouragement. The first draft of the book was completed in Hyde Park, Chicago. I thank my neighbour Joan Allison for her kindness, and I benefited from the company of Pan Ando, Susan, Lucy and Ricky Alitto, Emma Rose Pollack and the homeless cats and dogs who came into my life for short periods through my involvement with Hyde Park Cats and PAWS. Revisions to the book were also made in Hyde Park, and I thank Bulk, a graduate of Hyde Park Cats, for his company at my desk. In this phase leading up to publication, I also owe gratitude to my husband, Clifford Ando, Eileen Hunt Botting, Steven Gerrard, Brad Thames, Sandy Thatcher, Kate Williams and my Notre Dame undergraduate research assistants, Ashley Satterlee and Jennifer Dahm. I am also grateful to Acumen’s reviewers – Amy Baehr, Mary Lyndon Shanley and Anne Phillips – for their suggestions for improvement. The University of Notre Dame supported my fellowship at the Murphy Institute and granted me a semester of unpaid leave in fall 2009 to complete the first draft. I am also grateful to the Institute for Scholarship in the Liberal Arts at the College of Arts and Letters at the University of Notre Dame for financial support. The homeless cats keep coming, and continue to inspire with their sweetness and spirit. The volunteers at Hyde Park Cats continue to inspire too, with their unstinting concern for vulnerable and abandoned animals. vii

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ABBREVIATIONS

DWDR FC FJ

Hampton, “Defining Wrong and Defining Rape” (1999a) Hampton, “Feminist Contractarianism” (2007a) Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership (2006)

HCA

human capabilities approach

IPPR

Rawls, “The Idea of Public Reason Revisited” (1999)

JGF

Okin, Justice, Gender, and the Family (1989a)

JFR

Rawls, Justice as Fairness: A Restatement (2001)

MBW

Okin, “Is Multiculturalism Bad for Women?” (1999a)

OP

original position

PL

Rawls, Political Liberalism (1993)

SLS SSJ TJ WHD WWPT

Hampton, “Selflessness and the Loss of Self ” (2007b) Nussbaum, Sex and Social Justice (1999a) Rawls, A Theory of Justice (1971) Nussbaum, Women and Human Development: The Capabilities Approach (2000b) Okin, Women in Western Political Thought (1980)

ix

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INTRODUCTION: THE RETURN OF FEMINIST LIBERALISM

[T]here was an uneasiness about women born in the founding moments of the liberal tradition, a suppressed anxiety about whether it meant you had to regard men and women as equals. (Phillips 2001: 249) Modern Western feminism grew up as a sister doctrine to liberalism. Early feminist liberals include Mary Wollstonecraft, Harriet Taylor, John Stuart Mill, Susan B. Anthony and Elizabeth Cady Stanton, among others.1 There is nothing especially controversial in this claim about the liberal roots of feminism: even the radical feminist Zillah Eisenstein agrees that feminism has its source in liberalism, and in particular the liberal critique of patriarchalism dating back to John Locke (Eisenstein 1981: 4–13; cf. Jaggar 1983: 47). These pioneers of feminist theory2 were basically applying liberal commitments to women. This required them to extend Locke’s critique of patriarchal power into the private realm,3 by which I mean here the domestic realm, the household or the family (I use these last three terms synonymously). The term “liberal commitments” includes such values as: individual freedom; equality before the law; equal opportunity; moral equality; personal autonomy; being rewarded (or punished) on the basis of merit rather than birth; the rejection of arbitrary and unearned power and hierarchy and its replacement with the idea that the exercise of power by one individual over another must be rationally defended; consent to rule by those ruled; and freedom of conscience. Early feminists took this extension of liberal commitments to women to be a matter of justice, holding their exclusion from higher education, voting rights, property rights in many cases and entry to the professions to be intrinsically unfair. They also believed that society as a whole would benefit from women’s contributions in these areas. In the second half of the twentieth century, however, liberalism fell into disrepute among many, and probably most, feminist theorists in the 1

THE RETURN OF FEMINIST LIBERALISM

English-speaking world. It did not lose all defenders: Betty Friedan, for example, is usually considered to be a liberal feminist.4 But among many, if not most, feminist theorists, liberalism became a suspect doctrine. Thus while it is uncontroversial to point to the liberal roots of feminism, a major issue in English-language feminist political thought over the past few decades has been whether feminism’s association with liberalism should be relegated to the past. This book examines the positions of three contemporary feminists who, notwithstanding decades of feminist critique, are unwilling to give up on liberalism. The late Susan Moller Okin (1946–2004), the late Jean Hampton (1954–96) and Martha Nussbaum (1947– ) situate themselves within the liberal tradition and outline well-developed positions on the compatibility of feminism and liberalism. This study examines why each believes that liberalism offers the normative and political resources for the improvement of women’s situations. It also tries to explain and evaluate the differences among these three theorists, notwithstanding their shared allegiance to liberalism. Through a combination of explication, reconstruction and critical analysis, Chapters 2–11 bring out the main contours of each thinker’s work. They indicate what is distinctive and original in the thought of each while also showing what they share as feminist liberals. Okin receives the first and most detailed treatment because she entered the field of feminist thought earlier than Hampton and Nussbaum and because the vast bulk of her oeuvre has explicitly feminist foci.5 Her writings were also known to Hampton and Nussbaum, who cite them (mostly) appreciatively. I present Nussbaum’s feminist liberalism last because it is still evolving, partly in response to criticisms from feminists and others. Although Okin, Hampton and Nussbaum engage a number of the same topics, the thinker-by-thinker approach adopted here conveys that these are systematic thinkers whose views on one issue connect with those on another.6 It is also illuminating to lay out each thinker’s position in its own terms because, notwithstanding their shared allegiance to liberalism, their ideas are expressed in slightly different idioms.

1. ITINERARY

Chapter 1 explores the feminist critique of liberalism, outlining its major threads over the past thirty years of English-language scholarship. It identifies five major strands of criticism: (i) the sexual contract that accompanies the liberal social contract; (ii) the public–private separation; (iii) liberalism as a gendered tradition; (iv) liberalism’s neglect of structures of power; and (v) the ethic and practice of care debate. Chapter 2 adduces the key features of Okin’s feminist liberalism as they appear in Women in Western Political Thought (WWPT) and Justice, Gender, 2

INTRODUCTION

and the Family (JGF). The injustices contained within and consequent upon the domestic division of labour are explored, as is the idea of the family as the first school of moral development. In both works we see Okin’s insistence that the family cannot be reformed in isolation: other institutions need to change too before women’s full equality with men can be realized. While Okin’s adherence to liberalism remained largely latent in her first book, it became more obvious in JGF. But even then she was never very explicit about the shape of her liberalism. Chapter 3 contends that despite her criticism of Michael Walzer’s notion of shared meanings, the best way of understanding Okin’s feminist liberalism is as a liberalism of shared meanings. It goes on to examine what form the key concepts of her liberalism take and how they relate to one another, explicating her views on equal personhood, equality of opportunity, free choice, privacy and pluralism. Chapter 4 maps the Rawls– Okin debate, beginning with Okin’s critical but enthusiastic reception of A Theory of Justice (TJ). In writings published after Political Liberalism (PL), John Rawls spells out how justice as fairness deals with questions of women and the family in a way that ultimately vindicates Okin’s original assessment of the feminist potential of his liberalism. Just as Chapter 3 proposes that Okin’s liberalism is best understood as a liberalism of shared meanings, so Chapters 5 and 6 survey some of her encounters with situations where liberal meanings might not be shared. Chapter 5 focuses on her most controversial writing, “Is Multiculturalism Bad for Women?” (MBW). Here Okin can also be seen as engaging the intersectionality debate, with its emphasis on differences among women and their significance for feminist theorizing. This chapter concludes with reflections on whether Okin’s liberalism fosters or hampers her ability to incorporate the insights of intersectionality. If Okin’s feminist liberalism is a liberalism of shared meanings, it does not begin as a universalist liberalism. As Chapter 6 demonstrates, this poses a problem for her attempts to extend feminist liberalism onto the international stage: on what basis could liberal values be relevant for women in contexts where they are not part of the wider culture and politics? Okin develops an (at least tacit) answer to this question, for as she projects her feminist liberalism onto the international plane she becomes more attentive to women’s self-interpretations. Chapters 7 and 8 examine the feminist writings of Jean Hampton. Chapter 7 considers her relationship to the ethic of care, portraying Hampton’s use of the contract device as a way of making this ethic more consistently and robustly caring. I argue, however, that Hampton is best understood as an accidental contractarian because the contract apparatus ultimately proves to be inessential for her purposes. The real normative and theoretical work is done by her Kantian belief in the intrinsic worth of each person that should be respected in most human association. Chapter 8 applies this belief to a 3

THE RETURN OF FEMINIST LIBERALISM

number of issues that have long been of concern to feminists. It poses questions about what the abstraction and individualism of Hampton’s liberalism mean for her feminism and asks whether she pays any attention to the problem of generalizing about women in the face of salient differences among them. The feminist liberalism of Martha Nussbaum occupies Chapters 9 through 11. They outline her human capabilities approach (HCA) to international feminism and consider her work in light of the claim that a revived feminist liberalism must engage the challenge of intersectionality. Chapter 10 examines in detail the problem that adaptive preferences pose for Nussbaum’s feminist liberalism while Chapter 11 reveals how seriously she, like Okin and Hampton, takes some of the issues to arise from the debate about the ethic and practice of care. Chapter 12 brings these three feminist liberals into conversation with the feminist critics of liberalism outlined in Chapter 1. It demonstrates that Okin, Hampton and Nussbaum are not blind to, but actually endorse, many of the criticisms levelled at the liberal tradition by feminist scholars over the past three decades. However, as feminist liberals they aim to show that the liberal tradition contains the resources for answering these challenges: that the best response is to reconfigure, rather than reject, liberalism. Chapters 13 and 14 situate each of these three thinkers in relation to the Rawlsian distinction between comprehensive and political liberalism. Many doubts are raised about Nussbaum’s claim to be offering a form of political liberalism, while Okin and Hampton are presented as offering partially comprehensive forms of liberalism. Yet whatever the differences among them from the standpoint of this Rawlsian framework, Chapter 14 goes on to argue that all three adduce a type of “transformative liberalism”, to borrow Mark Button’s felicitous coinage (2008). The book’s conclusion identifies some continuing questions and challenges for contemporary feminist liberalism. Many revolve around the constitution of the category of women, which is, of course, a central issue for feminist theory.

2. THE RAWLSIAN RENAISSANCE

With the 1971 publication of TJ, Rawls is widely credited with fostering a renaissance in English-language political philosophy. As Anne Phillips (2001: 249–50) points out, Rawls also made liberalism more palatable to (some) feminists in the process. In the 1960s and 1970s liberalism had stood for a doctrine that defended the status quo and tolerated vast differences of wealth and income in the name of market freedom. Liberal political rights and freedoms were assumed to be inseparable from laissez-faire economics. As Rawlsian 4

INTRODUCTION

ideas pervaded political theory, these perceptions gradually changed. As Phillips observes, in recent years: Liberalism has … redefined itself so as to make an initially rather descriptive egalitarianism more central; it has lent an ear to the opposition and incorporated some of its best ideas. In the process, it has given the lie to some of the older feminist complaints against liberalism. (Ibid.: 259) Rawls turns out to be a key ingredient in understanding why some feminists have been willing to consider the uses, rather than simply the disadvantages, of liberalism for feminism. Well before his own discussion of his theory’s implications for women, the three thinkers studied here identified feminist potential in Rawls’s work. Yet while all have been powerfully influenced by Rawls, each appropriates different elements of his thinking. Okin was initially attracted by TJ’s location of the family among the institutions of the basic structure; the heuristic device of the original position (OP); and its two principles of justice. Hampton seeks to redeem a contractarian approach to personal relationships for feminist consideration, modelled along Kantian– Rawlsian lines, while Nussbaum weds the Rawlsian idea of a purely political liberalism to her capabilities approach to forge an international feminist liberal theory of justice.7 Rather than simply echoing one another, these three thinkers appropriate Rawls in quite different ways from one another and in so doing offer a variety of feminist liberal positions. This is not to suggest, however, that all forms of feminist liberalism take their cues from Rawls. Amy Baehr’s anthology, Varieties of Feminist Liberalism (2004), testifies to feminist liberalism’s return while underscoring its diversity. As Baehr remarks elsewhere, “feminist liberalism is not a monolith, but admits of varieties: Millian feminist liberalisms, Rawlsian feminist liberalisms, Aristotelian feminist liberalisms, and others” (2002: 150). Baehr (1996) points to some of the ways in which Habermasian thought can be more useful for feminist liberalism than can Rawlsian. Two decades ago, Susan Wendell, while not a proponent of feminist liberalism, urged feminists to reconsider some of the claims they had levelled against liberalism. Contending that liberalism was not always guilty as charged, she pointed out that its commitment to equal opportunity could require major economic reorganization and wealth redistribution (Wendell 1987: 65–6). And rather than requiring women to imitate men, Wendell sees liberal feminists as insisting on women’s equal value to men on the grounds that all humans are ends in themselves. She rejects any idea that liberal feminism advocates change in the public sphere alone, arguing that it has always sought public and private recognition of women’s equal value to men (ibid.: 66). 5

THE RETURN OF FEMINIST LIBERALISM

Wendell’s challenge to the standard depiction of liberal feminism did not rely on Rawls. Loretta Kensinger also identifies a need to rethink the value of liberal feminism as a category, again without reference to Rawls. She bases this on the relation between theory and practice in recent American history, suggesting that the way liberal feminism has been portrayed as a theoretical approach ignores liberal feminist activism. Many of the social and political reforms credited to liberal feminism were, moreover, achieved by a motley collection of activists, including socialist and radical feminists (Kensinger 1997: 188–9). The way liberal feminism has been constructed also neglects the contributions and challenges by women of colour. Reading liberal feminism as a practical, as well as a theoretical, tradition reveals that its demands “such as affirmative action, educational access, active government involvement in funding and support for abortion, and welfare rights have all been important issues for women of color” (ibid.: 190; cf. 181–3, 191). This implies that the common criticism of liberal feminism as a discourse created by white, middle-class, heterosexual women that erroneously purports to be about all women is something of a circular charge, legitimated by construing liberal feminism in a narrow and overly theoretical way in the first place. Denise Schaeffer also urges feminist theory to “recognize the contribution of liberal theory to its own enterprise, beyond liberalism’s historical role” (2001: 707). Basing her recommendations on a reading of Catharine MacKinnon’s work that brings out its tacit liberal elements, no reference to Rawls is needed. Contending that “liberal normative arguments are crucial to the feminist critique of patriarchy”, Clare Chambers (2008: 4) outlines a form of liberalism that takes the social construction of desires and identities seriously without placing Rawls front and centre. As even this cursory survey illustrates, some re-examinations of the liberalism–feminism relationship have been instigated without reference to Rawls.8 It would therefore be wrong to suggest that engagement with Rawls is essential to feminist liberalism’s reinvigoration. Nonetheless, it is noteworthy that the three thinkers providing the most fully developed forms of feminist liberalism do take many cues from Rawls and apply key aspects of justice as fairness to women.9 The pivotal role Rawls plays in the thought of these three feminist liberals also dooms to incompletion any assessment of his legacy that fails to take account of this. Yet many feminists remain critical of Rawls’s work and a number of questions persist. It has, for example, been argued that feminist liberalism must be a comprehensive doctrine of some sort – full or partial – and that a purely political liberalism cannot accommodate women’s interests, needs and concerns (Brake 2004: 300–301; Abbey 2007: 20–24). Rawls’s own remarks about gender also seem impervious to the debates about intersectionality, failing to ask to what extent we can assume a commonality among women despite 6

INTRODUCTION

differences of class, race, ethnicity and so on (Abbey 2007: 11). Yet this is not an issue that contemporary feminist theory can ignore, so an important question to be examined throughout this book is whether a feminist liberalism inspired by Rawls can incorporate the ways in which recent feminist thought has problematized the very concept of “women”. While Hampton’s work pays minimal attention to the constitution of this category, Nussbaum and Okin are more attuned to these questions, seeking to provide a feminist liberalism that is attentive to the variety of forces shaping women’s lives.

3. THEORY AND PRACTICE

Feminist theory has typically eschewed abstruse and rarefied approaches, preferring more engaged modes of theorizing. In order to contribute to improvements in women’s lives, it has to stay in touch with those lives, which no doubt helps to explain some of the criticisms of liberalism’s abstraction and many feminists’ preference for context and concreteness. According to Alison Jeffries, “In all feminist approaches … what is constant is the engagement of political theory with empirical reality. The political project of feminism requires that theoretical reflection on status and rights be tested in observations of the lives of women” (1999: 3; cf. 5). In this same vein, Nancy Hirschmann reports that: important insights emerge when we explore the particularity and detail of women’s experiences, when we look at those experiences from the perspectives of those having them … What women think they need from social relations, institutions, practices, customs, laws and public policy to establish and maintain their freedom … is a necessary starting point for theoretical consideration of the practical requirements of freedom. (2003: 222; cf. Jaggar 1989: 92; MacKinnon 1991; Brennan 1999; Enloe 2004: 304; Schwartzman 2006: 167) Yet in being so critical of liberalism, much feminist theory of the past few decades has failed to comply with its remit to engage the experiences and perspectives of women. Both the recession of feminist liberalism and rumours of its return apply to feminist theory only: in practice, in Westernized societies at least, feminist liberalism has never gone away. Liberal values, practices, institutions and discourses form a large part of many women’s lives.10 And whenever women have had the opportunity to pursue liberty, equality, rights and autonomy, many have seized it with both hands: consider their increasing participation in higher education, in the professions, in the paid 7

THE RETURN OF FEMINIST LIBERALISM

workplace, in social and political institutions; their advocacy of legal reforms promoting women’s equality, liberty and privacy; the quest for reproductive rights and freedoms; their pursuit of laws against domestic violence; their support for equal pay guarantees; and so on. Even Eisenstein acknowledged this gap between theory and practice when it comes to feminist criticisms of liberalism, admitting that “One does not have to be white or middle class to aspire to these values [equality of opportunity and independence] and therefore the ideas of liberal feminism are accepted by more women than is commonly thought” (1981: 178). This is not to suggest that all women in Western societies have benefited equally from these developments, nor that liberalism provides a panacea. Nor is it to deny that serious problems and inequalities persist. Deborah Rhode (2005) is right to warn that emphasizing the improvements in women’s positions can obscure the many problems that remain, such as domestic violence, sexual violence, employment inequalities, limitations on reproductive freedom, the unequal division of domestic labour, inadequate childcare provision and women’s absence from the leadership of society’s major institutions. MacKinnon (2010: 505–7) insists that even as some things have improved for some women, the problems posed by prostitution and pornography have worsened over the past few decades. As the coming chapters illustrate, the feminist liberals surveyed in this book care deeply about these problems, showing that one can champion liberalism while remaining alert to these troubles. However, the persistence of such problems does not detract from the fact that, on the ground, many women have responded with enthusiasm to the opportunities and possibilities that the liberal tradition has made available. In so far as feminist critics of liberalism have failed to give due consideration to this practical embrace by many women of liberalism, they have created a rupture between theory and practice.11

4. A WORD ON TERMINOLOGY

Although “liberal feminism” is a more familiar term than “feminist liberalism”, there are at least three advantages to talking about feminist liberalism. The first is that “liberal feminism” implies that thinkers are feminists first who qualify their feminism with liberalism, as opposed to Marxist or socialist or radical qualifications.12 This standard typology has expanded since the 1970s to include categories such as difference feminism, postmodern feminism and so on.13 For the three figures focused on in this book, however, the term “feminist liberalism” is more apposite because their feminism is an extension of their liberalism: indeed, for them, feminist liberalism should be a tautology. As Nussbaum insists: 8

INTRODUCTION

Liberalism needs to learn from feminism if it is to formulate its own central insights in a fully adequate manner. Taking on board the insights of feminism will not leave liberalism unchanged … But it will be changed in ways that make it more deeply consistent with its most foundational ideas. (SSJ: 56–7; cf. Schaeffer 2001: 699; Baehr 2002: 150)14 The second advantage of talking about feminist liberalism is that it sidesteps some of the misunderstandings surrounding liberal feminism, which is typically accused of seeking women’s equality with men, but assuming that equality means sameness. Holding that any liberalism worthy of its name should treat men and women as moral equals, feminist liberalism wants women to enjoy liberalism’s promise of equal dignity as persons. But it makes no a priori commitment to masculine standards of judgement and achievement and provides, moreover, normative grounds for criticizing their wholesale application to women. In connection with the charge that it adopts a masculine model of the subject, liberal feminism is also often understood to seek equality for women with men in the public realm only, whereas feminist liberalism applies liberal values across the public–private divide and is, for that reason, profoundly sceptical of the way in which this distinction has traditionally been drawn. The third benefit to talking about feminist liberalism is to intensify awareness of the variety of forms contemporary liberalism takes (see Abbey 2005).15 The term “liberal feminism”, by contrast, incurs the danger of this being construed as (and probably reduced to) a debate among feminists, rather than a debate among liberals. Talking about feminist liberalism catapults the discussion, in principle if not always in practice, into more mainstream debates within English-language scholarship about the meanings and implications of liberalism. Feminist liberalism has a long history and the evidence suggests that it is not going away soon. Theorists of liberalism might be less likely to simply ignore feminist liberalism when it is shown to be not only a durable, but also a valuable, part of their tradition. Along with encouraging mainstream liberal theorists to pay attention to feminist liberalism, I hope that this book will spur feminist theorists to reconsider their all-too-ready dismissals of liberalism. In Baehr’s estimation, the advantages to feminists from such reconsideration are twofold: correcting “inaccurate portraits of liberalism” and raising awareness of “the unacknowledged role that liberal principles already play in their thinking” (2002: 150). Liberalism will not, of course, be rendered immune from feminist (or other) criticism on the basis of the ideas surveyed here, but the debate will become more productive if feminists target future critiques more precisely and more fairly. 9

1. THE FEMINIST CRITIQUE OF LIBERALISM

That liberalism and feminism are incompatible has been arguably the dominant view among feminist scholars over the past thirty years. (Baehr 2004: 1; cf. Cornell 1998: 16; Schaeffer 2001: 699) Although it played a pivotal role in the development of Western feminism, liberalism fell out of favour among many, and probably most, feminist theorists in the English-speaking world in the second half of the twentieth century. Hirschmann (1999: 28) sees the feminist critique of liberalism as emerging from second wave feminism in the 1970s, while many track it to Alison Jaggar’s 1983 work Feminist Politics and Human Nature.1 Eisenstein’s 1981 The Radical Future of Liberal Feminism offers a slightly earlier starting-point,2 while Simone de Beauvoir’s The Second Sex, first published in English in the early 1950s, is an even earlier contender for initiating feminist criticism of liberalism in the second half of the twentieth century.3 Drawing primarily from the work of Eisenstein, Carole Pateman, MacKinnon, Carol Gilligan, Eva Kittay, Jaggar, Hirschmann, Frances Olsen and Lisa Schwartzman, this chapter identifies five major threads of feminist critique of liberalism in the English-language literature from the past three decades:4 (i) the sexual contract that accompanies the liberal social contract; (ii) the public–private separation; (iii) liberalism as a gendered tradition; (iv) liberalism’s neglect of structures of power; and (v) the ethic and practice of care debate.5 But as the section “With or without it” below points out, few of liberalism’s feminist critics repudiate it altogether. They typically gesture towards a revised liberalism that would become more reflective of women’s experiences and more responsive to their needs and interests.

10

THE FEMINIST CRITIQUE OF LIBERALISM

1. THE SEXUAL CONTRACT

A good place to start any exposition of the feminist critique of liberalism is at the beginning: at liberalism’s beginnings in the social contract tradition. The key figure here is Pateman, who argues that a sexual contract underpins the liberal social contract. Based primarily on her reading of canonical texts, Pateman reveals women’s exclusion from the creation of the social contract that legitimated the liberal state. This contract about the purposes and limits of state power was made by male individuals, who were assumed to be heads of households. Although bound by its terms and conditions, women did not participate in the contract’s creation, but nor were they left behind in the state of nature. Women were patients, rather than agents, of the social contract. Incorporated as subordinates rather than equals, they were members of society but not citizens. Women were consigned to the private realm, where relations were seen as natural rather than political (Pateman 1992: 181; 2007: 203–4). In this arena of sex and of reproduction (both of bodies on a daily basis and of the species), relations were supposed to be regulated by love, care and benevolence rather than justice and rights. The family is thus placed beyond the purview of liberalism as a theory of politics. As Pateman puts it: The story of the social contract is treated as an account of the creation of the public sphere of civil freedom. The other, private, sphere is not seen as politically relevant. Marriage and the marriage contract are, therefore, also deemed politically irrelevant. [Yet] To ignore the marriage contract is to ignore half the original contract. (1988: 3) In creating this “public sphere of civil freedom”, liberalism removed patriarchal power from the public realm. Yet by ignoring the institution of marriage, liberalism silently reaffirmed patriarchal power in the family. Developing one of Eisenstein’s claims that Locke was a “patriarchal anti-patriarchalist”, Pateman explains that although liberalism defeated patriarchy in the sense of rule by fathers over sons, patriarchy in the sense of men’s control over women remains alive and well (ibid.: 22). But men’s power over women went largely unchecked because of the family’s designation as private, non-political, natural (cf. MacKinnon 2006: 4, 6, 39). Although Pateman develops her argument about the social and sexual contracts from her reading of canonical sources,6 she believes that it is of more than historical interest, for many Western societies continue to think about their governments in social contract terms (1988: 4–6, 18). Contemporary institutions such as marriage and employment can also be treated as contracts. Exposing the patriarchal foundations of the social contract casts 11

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doubt on women’s seamless absorption into these institutions and practices. And the attainment by women of public identities – the ability to vote, run for office, bear rights, participate in the economy beyond the household – does not fundamentally alter the structure of subordination in the domestic realm. Yet being ignorant of the sexual contract that accompanied the social contract, liberal feminists have remained oblivious to this problem: The history of liberal feminism is the history of attempts to generalize liberal liberties and rights to the whole adult population; but liberal feminism does not, and cannot, come to grips with the deeper problems of how women are to take an equal place in the patriarchal civil order. (Pateman 1989: 51; cf. 214; 1992: 181; Hirschmann 1999: 29) Exposing the sexual contract that accompanies the social contract also sheds light on something as basic as the salience of gender in politics, for narrating its history in this way shows “how sexual difference, what it is to be a ‘man’ or ‘woman’, and the construction of sexual difference as political difference, is central to civil society” (Pateman 1989: 16).

2. THE PUBLIC–PRIVATE SEPARATION

In the interests of personal freedom, liberalism is committed to the analytical and normative separation of the public and private realms. Yet the term “private” is inherently ambiguous. As a contrast concept to “public”, the designation can refer to (i) civil society (voluntary organizations and associations that exist between the family and the state); (ii) the economy; and (iii) the household or domestic realm. These three spheres are very different from one another in terms of functions and dynamics. The “private” seems to serve as a residual category, containing anything that does not, in principle, call for state regulation. (Of course in practice the state is involved in all these areas.) So instead of relying on a binary distinction between public and private, we need to distinguish the public from civil society, from the economy, and from the household, all the while acknowledging that none of these separations are neat, clean or complete. For the purposes of feminist analysis, the category “private” refers to the household. But feminist theorists insist that no neat separation between the public and private in this sense is possible: in myriad ways the family intersects with the public realm. As Olsen has pointed out, who and what counts as a family is itself a political and legal decision (1985: 837, 842 ; cf. Stevens 2005: 77, 83; Schwarzenbach 2009: 221).7 More expansive conceptions of families, comprising those who live together, pool resources 12

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and care for one another, are available and increasingly popular, yet these domestic units often do not enjoy many of the benefits attributed to families in tax policy and other areas of law.8 Not only have liberals been purblind to the law dictating what counts as a family, but they have been highly selective, not to say hypocritical, in their attempts to keep the government out of the domestic realm. The state routinely intervenes there in many ways: regulations about abortion, laws mandating education of children to a certain age, and public policies promoting maternity are just some examples. So liberal respect for the supposed privacy of the family has been partial: active intervention in the family on some issues has been coupled with reticence or neglect on others, such as the formation and enforcement of laws against marital rape and domestic violence (cf. Minow & Shanley 1996: 17). Another way in which the family and the public realm are connected is that what happens to individuals in the domestic sphere shapes their opportunities in other areas. If one or some people earn and control the household income, while everyone depends on this, this can differentially affect the ability of those members to satisfy their needs or pursue their interests. Many feminists also echo Pateman’s claim that “the spheres are integrally related and … women’s full and equal membership in public life is impossible without changes in the domestic sphere” (1989: 129). If one or some family members carry an undue burden of unpaid domestic work, this limits their ability to participate in politics or other activities that matter to them (Baehr 2002: 151; Rhode 2005: 178). Calling these “spillover effects”, Kimberley Yuracko contends that “private domestic gender inequality spills over into the public sphere, thereby denying women meaningful participation in the public sphere” (1995: 7–8). Because the family is categorized as private and non-political, liberal political thought leaves it, as we have seen, largely unscrutinized. Yet, as feminist theorists insist, whether deemed political or not, the family is a locus of power relations. Power is exercised among its members, and can be done so in ways that are more or less in accordance with liberal desiderata. If liberalism is genuinely committed to values such as minimizing arbitrary power and respecting the equal moral worth of persons, there is no a priori reason to exclude the family from its purview. Finally, as Wollstonecraft and Mill9 have underlined, the family is the first school of social relations, for there most people learn (or fail to learn) how to treat others with respect and consideration (Yuracko 1995: 20; Minow & Shanley 1996: 24–5). The liberal polity requires a range of virtues and values from its citizens such as respect, tolerance, law abidingness and willingness to sacrifice one’s own resources for others (military service, taxation, jury service), and it is important that citizens accustom themselves to these virtues and values as early and often as possible. When family members are 13

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treated as moral equals, worthy of respect and so forth, it becomes easier for them to grow up to behave as good liberal citizens in the public realm.10

3. LIBERALISM AS A GENDERED TRADITION

Another major feminist critique of liberalism has been that, despite its claims about neutrality and impartiality, liberalism is a theory developed for, by and about men. Despite the abstract language in which it is usually couched, the liberal subject is masculine.11 Masculine perspectives and experiences pervade this tradition in more and less subtle ways. Liberalism has, for example, traditionally protected the citizen’s civil and political rights: in defending such things as freedom of speech, the press and assembly, and the principle of habeas corpus, liberalism makes citizens as free from government interference as is compatible with public order and the equal freedom of other citizens. Feminist critics of liberalism do not say that these rights and freedoms are irrelevant to women, nor that they would be better off without them (Smart 2005: 138–41). They claim instead that emphasizing these rights and freedoms neglects freedom and equality in the domestic sphere, which is where many of the abuses and much of the oppression that happens to women on the basis of gender occurs. As MacKinnon writes, “To be a person, an abstract individual with abstract rights, may be a bourgeois concept, but its content is male … Abstract equality has never included those rights that women as women most need and never have had” (1989: 229). Hirschmann likewise finds that “rights have been inadequate in tackling sexist barriers, because the framework in which they exist often cannot even see harm to women as harm, such as pornography, rape, or even sexual harassment” (1999: 39). Such exposure of the liberal paradigm as male-biased (Jaggar 1983: 46–7; Schwarzenbach 2009: 17) means that simply extending its rights and freedoms to women cannot qualify as treating them equally. Required to become like men to attain equality, women must try to squeeze their experiences into categories designed by and for (some) men. Any differences in women’s perspectives, needs, life cycles and choices are judged from a masculine perspective as special at best, deviant at worst (Hirschmann 2003: 223; Bryson 2007: 44). MacKinnon has been the most forceful exponent of the argument that women’s equality with men requires women to resemble men. The liberal concept of sex equality “has not traditionally been theorized to encompass issues of sexual assault or reproduction because equality theory has been written out of men’s practice, not women’s” (1991). She points repeatedly to the standing dilemma women face with regard to equality law. Women who invoke equality to challenge discrimination typically have to show that they were treated differently from a similarly situated man (1989: 216–34). But, from MacKinnon’s point of 14

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view, women and men are never similarly situated because what masquerades as gender difference is really masculine domination and feminine subordination. There is no such thing as “equal but different”: equality means sameness to men while difference means domination by them (ibid.: 51). MacKinnon paints the whole liberal state apparatus as masculine, insisting that “the law sees and treats women the way men see and treat women. The liberal state coercively and authoritatively constitutes the social order in the interest of men as a gender … [its] formal norms recapitulate the male point of view on the level of design” (ibid.: 161–2; cf. 215–16; 2006: 4). Underpinning all this is the (usually) invisible masculine norm that animates liberalism, concealing what is masculine under the guise of the human. In one of her most succinct and compelling statements of this, which has become a widely-cited passage in feminist work, MacKinnon rails that: every quality that distinguishes men from women is already affirmatively compensated in society’s organization and values, so that it implicitly defines the standards it neutrally applies. Men’s physiology defines most sports, their health needs largely define insurance coverage, their socially designed biographies defined [sic] workplace expectations and successful career patterns, their perspectives and concerns define quality in scholarship, their experiences and obsessions define merit, their military service defines citizenship, their presence defines family … their wars and rulership define history, their image defines god, and their genitals define sex. These are the standards that are presented as gender neutral. (1989: 224)

4. LIBERALISM IGNORES STRUCTURES OF POWER

MacKinnon’s insistence that gender differences mask relations of domination leads to another line of feminist critique according to which liberalism is incapable of seeing such domination. Because of its individualism, liberalism can take no account of structures of power and thus is impervious to the very possibility of systematic domination and oppression. Viewing people primarily as autonomous individuals, liberalism is incapable of analyzing oppression in class or group terms. Eisenstein’s (1981: 190–91) claim that liberalism is blind to structural forces and the existence of collectivities was echoed before the decade’s end by MacKinnon12 who accuses liberalism, and liberal feminism, of taking the individual, rather than the group, as “the proper unit of analysis” (1989: 40). This makes its category “women” simply aggregative. Liberal feminism takes improvement in women’s conditions to require a levelling out of 15

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differences and inequalities among individuals. Focusing only on individuals and prescribing merely reformist remedies, it is unable to see that women as a group are subordinated to men as a group. Unable to see it, it is powerless to remediate it. Radical feminism, by contrast, sees women as an oppressed group, oppressed simply by virtue of membership in that group (ibid.: 228; cf. MacKinnon 2001: 709; Chambers 2008: 104). Demanding deeper and more thoroughgoing change, it depicts sexism as “a system of subordination to be overthrown” (MacKinnon 1989: 40). Both Eisenstein’s and MacKinnon’s critiques of liberalism on this score are indebted to Marxism: their identification of systematic and structured power relations where others see only freely acting individuals is of a piece with Marx’s critique of capitalism. For Marx, traditional political economy looks at capitalism and sees only free exchanges between individual buyers and sellers of goods and labour whereas Marxism exposes the deep-seated exploitation of one class by another. MacKinnon’s depiction of the liberal state as male also parallels Marx’s presentation of it as bourgeois. Yet MacKinnon (1989: 9) insists that feminism needs more than Marxism, for class analysis divides women and misses what they share qua women. Iris Marion Young reiterates this point about liberalism’s individualism rendering it unable to see people as members of collectives, and as being subject to domination and disadvantage on the basis of such membership. “The discourse of liberal individualism denies the reality of groups … This individualist ideology … obscures oppression. Without conceptualizing women as a group in some sense, it is not possible to conceptualize oppression as a systematic, structured, institutional process” (Young 1997: 17). Schwartzman (2006: 7, 56, 106, 166–7) has recently echoed the contrast Eisenstein, MacKinnon and Young draw between liberalism and feminism. Because of its focus on individuals as individuals rather than as members of classes or groups, liberalism is incapable of perceiving, let alone criticizing, the social hierarchies that subordinate people on the basis of group membership. Along with its attention to collectivities rather than isolated individuals, feminist theorizing must be contextual and concrete and thus reject the abstraction that characterizes liberal methodology. According to Schwartzman, the construction of “highly abstract models” prevents liberal theorists from doing “the important work of identifying and challenging oppressive structures of social, political, economic and sexual power” (ibid.: 8). To identify the forces that oppress people, it is necessary to engage with, rather than abstract from, the concrete details of their lives. However, Schwartzman criticizes liberal theory for being both too abstract and not abstract enough. Attempts at abstraction are doomed to incompletion, bound to unwittingly carry over some of the concrete details of individuals’ lives while failing to recognize these remnants in the resulting abstraction (ibid.: 8–9, 11–12, 109, 16

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160). She applauds MacKinnon’s exposé of the supposedly abstract liberal subject as masculine and cites as a further example Rawls’s image of the head of household. This abstraction bears unexamined assumptions about this figure’s masculine identity (ibid.: 99–101). Schwartzman thus underlines the incompatibility between feminist theory and liberal methodology (ibid.: 2, 7, 162; 2009: 178, 188). In place of such disabling abstraction and individualism, she congratulates feminist critics of liberalism for attending “to the collective nature of women’s oppression and to the concrete experiences of women’s lives under sexist social structures” (2006: 6; cf. 7).13

5. THE ETHIC AND PRACTICE OF CARE DEBATE

An influential strand of feminist criticism of liberalism has grown out of the ethic of care–ethic of justice debate sparked by Gilligan’s critique of Lawrence Kohlberg’s theory of moral maturation. Gilligan contends that the feminine voice of moral reasoning expresses itself as an ethic of care and focuses on relationships and their preservation rather than on discrete individuals; it cares more about responsibilities than rights; it frames ethical dilemmas in terms of compromise and conciliation rather than applying mathematical formulae; it is interested in concrete details of context rather than abstractions. While Gilligan’s book is primarily about moral psychology, some feminists have picked up on its critique of Kantian-style moral reasoning – universalist, abstract, deontological, impartial – and applied this to liberalism more generally (cf. Tronto 1987: 650 n.19).14 In Gilligan’s work, Hirschmann sees “a moral schema that gives priority to aspects of human life that liberalism either makes invisible or allows the powerful to repress when convenient” (1992: 185). Liberalism has been able to ignore or devalue the ethic of care because caring has been associated with women’s function in the private realm. According to Jaggar (1983: 28, 173), the liberal subject is rationalist, which ignores or marginalizes women’s style of moral thinking, which is more care oriented. Jaggar also contends that “the liberal conception of human nature is radically individualistic”, with social context and relations playing little or no part in the constitution of this solipsistic creature (ibid.: 173; cf. 29–30, 40–43; Nedelsky 1989: 9). As Elizabeth Kiss (1997) reports, some feminists see the rights discourse that is part of the ethic of justice as the political expression of the underlying atomist ontology of liberalism. Bounded and separate individuals seek rights to protect themselves from the incursions of others. The underlying image of social interaction is one of separate individuals in competition and conflict. All these things are, in turn, deemed to be masculine,15 and contrast with the emphasis by the feminine ethic of care on connection, relationships, 17

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compromise, conciliation and taking responsibility for others (cf. Brennan 1999: 866, 868).16 Continuing the criticism of liberalism from the vantage point of the ethic of care, Hirschmann identifies the priority liberalism accords to obligations undertaken consensually. Its preoccupation with choice and consent overlooks obligations that are not freely undertaken but that make a powerful moral claim nonetheless. Liberalism “ignores or denies what women’s experience reveals, namely, that obligations do in fact exist that are not chosen but stem from the history and character of human relationships” (Hirschmann 1989: 1229). The liberal legitimation of obligations incurred through choice only is, once again, underpinned and explicable by its atomist ontology: it sees individuals as bounded and separate from, rather than intrinsically connected to, one another (ibid.: 1238). This brings us to another vein of the feminist critique of liberalism that flows out of the ethic of care debate. The image of the autonomous, independent individual might be an appropriate model for thinking about social and political relationships for some adult, male, healthy, white, able-bodied, propertied citizens some of the time, but it ignores the situation and needs of everyone else. Working with such a model of the subject afflicts liberal political theory with the inability to accommodate the fact of dependency, be it physical, emotional or financial. Yet everyone experiences some form of dependency at some stage of their life: as children we all do, but it can recur for shorter or more protracted periods through illness, mental or physical disability, financial need and old age. The most forceful exponent of this line of feminist criticism of liberalism is Kittay, whose work focuses not just on the ethic of care but also on caring practices. Most of the caring work in Western societies – unpaid care in the home for dependent family members be they children, older people or the disabled, and caring work in hospitals and other health institutions, childcare centres and so on – is done by women.17 It is mostly underpaid and typically under-recognized. Blind to the fact of dependency in society, liberal theory can find no way of addressing this issue, let alone redressing some of the injustices that accompany it. This is a serious affliction for a theory of justice.

6. WITH OR WITHOUT IT

This litany of feminist complaints about liberalism is long (but not exhaustive) and its contents formidable. It is not difficult to see why some feminists jettison liberalism altogether. Yet one of the intriguing features of many of the feminist critiques canvassed above is that, alongside the criticisms, we find endorsements of some aspects of liberalism. Many of liberalism’s feminist 18

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critics seem unable to live with or without it. A good illustration of this ambivalence comes in Jennifer Nedelsky’s discussion of the value of autonomy. On the one hand, she records that “Anyone who has listened closely to academic feminists will have heard this undercurrent of rage at all things liberal”, but on the other hand, “liberalism has been the source of our language of freedom and self-determination” (1989: 9). As the remainder of this chapter shows, many feminist critics do not, in the last analysis, dispatch liberalism altogether: they recommend instead a reconceptualization of its key elements such as individualism, rights and freedom.18 Eisenstein believes that certain elements of the liberal agenda should not be overcome, announcing that “the liberal conception of an individual with rights and of woman’s independence from men are important contributions to feminist theory. These points must be distinguished from the ideology of liberal individualism that posits the isolated, competitive individual” (1981: 154). A footnote concedes that “there is important content within liberal ideology that should be retained for feminist theory in its nonpatriarchal form” (ibid.: 12 n.10). She reiterates this with the claim that “The promise of this potential freedom in liberal ideology may be denied by the political realities of society, but it still stands as a model on which later feminists can call” (ibid.: 44). Despite her indebtedness to Marxist analysis and the stirring rhetoric of her writing, MacKinnon’s solutions to women’s problems are largely reformist: she advocates and enacts change through the legal system (cf. Schaeffer 2001: 702). MacKinnon (2006: 89) does, to be sure, try to show that certain social practices such as pornography harm women as a group, but she believes that each and every member of the group “women” is harmed. Conversely, as Schaeffer (2001: 704) points out, MacKinnon’s approach to legal redress attends to the harm done to individuals, whatever their gender. Thus discussing “our human rights law”,19 MacKinnon brings out its benefits for individuals, for it “permits victims to seek civil damages and stop the pornographers when they can prove harm … Men, children, or transsexuals, all of whom are sometimes violated like women are through and in pornography, can sue for similar treatment” (MacKinnon 2006: 89; cf. 96).20 Schaeffer’s further remarks on MacKinnon and Dworkin’s civil ordinance are illuminating here, for within their framework, “the conflict over pornography exists between individuals and not between the individual and the state. She [MacKinnon] intends her attack on pornography as an expansion of individual rights” (Schaeffer 2001: 704). It is hard to escape the conclusion that MacKinnon “talks” revolution but “walks” legal reform. This is not intended to detract in any way from her massive contribution to feminist analysis nor her admirable attempts to improve women’s lives, but simply to question what is really at stake in her seemingly draconican attack on the liberal tradition.21 19

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Schwartzman resembles Eisenstein and MacKinnon in her desire to retain liberal values such as rights, equality, liberty and autonomy: “What women need in order to live free from the oppressive structures of male domination can, to some extent, be articulated through reformulating these ideals and using them in ways that avoid the pitfalls of liberalism” (2006: 10; cf. 4, 12, 113–14, 162). Because the burden of Schwartzman’s critique rests with liberalism’s abstract and individualist methodology, it seems that for feminist purposes a different methodological approach could profitably be fused with some of liberalism’s key normative concerns (ibid.: 103–4; 2009: 181). She is not even saying that feminist method must abjure all abstraction and individualism. Rather, a feminist approach should be grounded in the realities of women’s lives and, from there, explore what the appeal to rights or equality or autonomy might mean in those contexts (2006: 4, 10, 162). Jaggar claims that liberal ideas “must remain in some way part of feminism” once they have been “revised or reconceptualized” (1983: 47), just as Hirschmann declares that feminism needs: a reconfiguration and specification of the general liberal notions of freedom, equality, universality, neutrality, individualism, and most importantly rights, in terms of feminist political values and goals. By starting with feminist values, feminists can redefine and reshape the meaning of liberalism and rights themselves. (1999: 49; cf. 36) In light of such injunctions, it is interesting to consider how far the feminist liberals studied in this book go in effecting the rapprochement between feminist concerns and liberalism that many of liberalism’s feminist critics envisage. This question is taken up directly in Chapter 12. The intervening ten chapters offer detailed readings of the feminist liberal positions carved out by Okin, Hampton and Nussbaum, respectively.

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I.

THE FEMINIST LIBERALISM OF SUSAN MOLLER OKIN

2. INJUSTICES, GENDER, FAMILIES

The traditions of “our” patriarchal past have been of major significance in the perpetuation of the gendered social structures and practices that have resulted in continuing and serious injustices to women. (JGF: 72) This chapter introduces Susan Moller Okin’s feminist liberalism by looking at the key arguments of her two books: Women in Western Political Thought (WWPT) and Justice, Gender, and the Family (JGF). Rather than discussing in detail her analyses of canonical political thinkers, the focus is on the current concerns informing WWPT. The problematic public–private separation that Okin finds to persist in political theory is raised, and I reflect on her desire to reform rather than abolish the family. Okin insists, however, that the family cannot be reformed in isolation: other institutions will need to change too before women’s full equality with men can be realized. Many of these themes are reprised and elaborated in JGF. The injustices contained within and consequent on the domestic division of labour are explored, and Okin’s policy proposals for relieving what she calls “vulnerability by marriage” are detailed. The meaning Okin gives to key terms such as family, marriage and women is considered, as is her depiction of the family as the first school of moral development.

1. WOMEN IN WESTERN POLITICAL THOUGHT

Okin’s first major work, which began as her doctoral dissertation under Walzer’s supervision, is primarily a study of the depiction of women in the work of Plato, Aristotle, Rousseau and Mill. Part V examines how traditional views of women pervade the work of some twentieth-century thinkers and some American legal decisions.1 It is striking, three decades later, to consider 22

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WWPT’s introductory claim that “No one … has yet examined systematically the treatment of women in the classic works of political philosophy” (WWPT: 3). Several pages later, Okin laments that “the unequal treatment of women has remained for too long shamefully neglected by students of political thought” (WWPT: 11). Since she made those remarks, feminist re-readings of canonical Western texts have exploded into a fruitful area of scholarship. But WWPT pre-dates Eisenstein’s The Radical Future of Liberal Feminism (1981); Jean Bethke Elshtain’s Public Man, Private Women: Women in Social and Political Thought (1981); Hannah Pitkin’s Fortune is a Woman: Gender and Politics in the Thought of Niccolo Machiavelli (1984);2 Genevieve Lloyd’s The Man of Reason: “Male” and “Female” in Western Philosophy (1984) and Pateman’s The Sexual Contract (1988).3 So Okin was a pioneer in this soonto-burgeon field of scholarship. Okin’s interest in these canonical works was not purely historical: two current concerns inform her analysis. First, she wonders whether the attitudes towards women expressed in the thought of Plato (in the Laws, not the Republic), Aristotle, Rousseau and even Mill, to some extent, endure in present-day thought and practice (WWPT: 4). The acquisition of the formal rights and freedoms of citizenship by women in Western societies in the twentieth century has not brought them full equality. Women as a group lagged behind men as a group in terms of educational attainment, economic power, occupational status and presence in political institutions; they were effectively “second class citizens” (WWPT: 3; cf. 4, 290, 293). Okin believes that the views about women expressed in the classical philosophical sources of Western politics could be illuminating in the search for some way of understanding women’s formal equality and de facto inequality (WWPT: 289). The second current concern informing Okin’s excursion into historical texts is related to this, for she ponders what value they have at a time when women can expect equality with men (WWPT: 4, 274). In most of these writings, women are seen as fundamentally different from men, embedded within and confined to the family, with their social role dictated by biological capacities for childbearing and their functions as wives and mothers. These works view women’s functions within the family as the most important aspects of their identity. Women’s functions should take priority over any other pursuits such as employment in the paid workforce, education, political participation and so on (WWPT: 10–11, 293). Women’s value lies not in who they are or what they choose to become but in the services they provide. Across the vast chronological sweep of her book, Okin records the recurring “tendency to regard men as complete persons with potentials and rights, but to define women by the functions they serve in relation to men” (WWPT: 304). More evidence of the functional view of women comes in the way canonical political thought has claimed to talk about individuals but has 23

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often meant families. This has occluded the fact that the family is composed of discrete individuals who could sometimes have divergent interests. Theorists have traditionally assumed that the interests of “the family as a whole” will be expressed and protected by its male head. If women are to become men’s equals within the family and elsewhere, this approach can no longer prevail (WWPT: 283). The ubiquity of the functional view of women suggests that the ideas and arguments in these texts cannot seamlessly absorb full equality for women with men, for two reasons. First, because the functional view defines women in a fundamentally different way from men, it is not immediately obvious how women’s equality could be reconciled with the emphasis on their difference. Second, as Joan Tronto (1981: 596–7) points out in her review of WWPT, if women are to perform the same roles as men, who will fulfil women’s traditional functions within the family such as childcare and housework? If women participate in the paid workforce, the professions and the public world that men have traditionally monopolized, men will have to assume some of the domestic responsibilities traditionally assigned to women. A further doubt about the enduring relevance of these canonical texts comes from the fact that they typically treat the public and private realms as qualitatively distinct. One consequence is that women’s labour in the household is seen as differing by nature from men’s in the workforce. The former is, for example, unpaid whereas the latter is income-earning. Yet starting in WWPT and continuing through all her writings, Okin draws attention to the close connection between these two realms. Unpaid domestic labour is, for example, infrastructural to paid work; someone has to supply clean clothes, food and shelter for the paid employee (WWPT: 291–2). When women enter the paid workforce, their work is seen to be worth less than men’s and, if married or in a relationship with an employed man, a woman’s decision to work is treated as a choice rather than a necessity. There is also the widespread assumption that women have primary responsibility for the household, including childcare, and that this will have an adverse impact on their ability to be productive workers. Only when men start to assume an equal share of domestic responsibilities will these deep-seated beliefs about their worth and compatibility with paid work be reconsidered (WWPT: 301). The public–private distinction also assumes that the dynamics of the family are qualitatively different from those of politics and citizenship and that intrafamilial relations fall outside the purview of politics. But this disregards the Millian insight that the family is the first school of social relations.4 The most effective way of creating liberal–democratic citizens is by raising them in households that embody liberal and democratic values. “If our aim is a truly democratic society, or a thoroughly democratic theory … anything but a democratic family, with complete equality and mutual interdependence 24

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between the sexes, will be a severe impediment” (WWPT: 289; cf. 286–8). The presumptive norm of equal participation by both genders in domestic tasks is also needed to change children’s perceptions of who does what sort of work, and what counts as important (WWPT: 302). It will be hard to dispel the functional view if children grow up in households where women carry a disproportionate share of domestic labour. One of the questions from WWPT’s concluding overview is whether women’s equality and freedom can be reconciled with the institution of the family. Some feminists follow Plato in Book V of the Republic by contending that women can perform the same functions as men only if the biological family is abolished (WWPT: 274, 294–5). Okin, however, advocates reform, rather than dissolution, of the family.5 She allows for the value of family life, noting that a restructured family could enhance “people’s opportunities to live free, creative and fulfilling lives” (WWPT: 283; cf. 281, 295).6 She points out that, paradoxically, the radical urge to abolish the family is fuelled by the traditional belief that its conventional form is its natural and only possible one. She thus seeks a middle ground between these doppelgänger extremes (WWPT: 301). Along with revising family dynamics in the direction of greater equality between its adult members, conceptions of who or what a family is also need to change. To be non-discriminatory to both women and men, political and legal conceptions of the family need to be flexible, and not prejudge the ways in which people will arrange their personal lives nor impute particular roles to family members. According to Okin, “a number of alternative living arrangements must be similarly recognized as constituting mutually supportive groups. These would consist of various numbers of people of either or both sexes, with or without children” (WWPT: 284). Expanding choices about how to live is valuable to her, and this includes choice about intimate associations. Okin’s insistence that men and women be free to engage in the same range of activities as one another does not rest on any denial of a basic sexual difference. But the biological fact that only (some) women are capable of bearing children and only some of lactating does not mean that children need to be raised exclusively by their biological mothers. These biological imperatives can be unhooked from care for children, especially as the children grow. Men could take a much more active role in childcare and domestic responsibilities than they have hitherto. But a reconfigured family, where men and women share domestic responsibilities, including childcare, can work only if there are changes outside the family too. The workplace needs to become more flexible and high quality, affordable childcare needs to be made available in recognition of the fact that most workers, male and female, are likely to have childcare responsibilities for a portion of their working life (WWPT: 302). While Okin does not deny the existence of some biological differences between males and females, what sort of individuals women (and men) 25

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become when biological differences are not taken to determine such a large part of their lives remains to be seen (WWPT: 297). Indeed, women in Western societies now have considerable technological potential to regulate whether and when they bear children; how women exercise their distinctive biological capacities is becoming more a matter of choice. Okin welcomes this as a way of disentangling conceptions of women from their biological functions and also of enhancing choice in women’s lives. Two things are noteworthy about her discussion of reproductive choice. First is her optimism about the ability of technology – the contraceptive pill and hygienic abortion – to allow women to make choices about the fact and timing of maternity. Her discussion lacks any sense of the shadow that politics can cast over technology when it comes to reproductive freedom. The mere possibility of safe, legal abortion and reliable contraception does not mean that these things are here to stay nor equally available to all women: knowledge about these possibilities, access to them and their affordability varies by age, class and geographical location, to say nothing of the power of the US Supreme Court to overturn abortion rights. The US is not representative of other Anglo-American countries or Western countries more generally, where legal abortion is in a less precarious position and where there is, to my knowledge, no debate about “provider conscience” rules, that is, whether doctors, pharmacists and others in the medical service can refuse on the grounds of conscience to inform their clients about, or supply them with, abortion and methods of contraception. In Western countries other than the US, however, access to safe abortion can still vary with age, class and geographical location. The second notable thing is the way Okin frames such choices as belonging to individual women while believing that men and women should be equally responsible for rearing children. Combining these ideas yields an asymmetrical distribution of freedom and responsibility for men and women. The decision to undertake or continue a pregnancy falls very differently on a woman than on a man, and for this reason the power to decide should rest more heavily, and ultimately, with women. I am not, therefore, suggesting that men should have the power to stop a woman from seeking to prevent or terminate a pregnancy. However, it seems unfair for Okin to depict reproductive choices as belonging to women alone while men are called on to share in the support of any children that might issue from such a potentially unilateral decision. Ideally, any woman’s decision to initiate or continue a pregnancy should be negotiated with any other persons who will be responsible for the ensuing child. Of course, many situations fall far short of this ideal but because Okin is articulating ideals in this part of her discussion, attention to the asymmetrical way in which she depicts choice and responsibility is warranted.7 26

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2. PLUS ÇA CHANGE: JUSTICE, GENDER, AND THE FAMILY

Described as “a fitting, if distressing sequel to her groundbreaking WWPT” (Kymlicka 1991: 77), Okin’s next major work, published a decade later, was JGF. This book reprises many of WWPT‘s themes8 but, in place of canonical political theorists, it scrutinizes the work of leading contemporary thinkers: Rawls, Robert Nozick, Alasdair MacIntyre, Michael Sandel and Walzer. Its grim conclusion is that “major contemporary theorists of justice are not doing much better at confronting the issues of justice and gender than did the theorists of the past” (JGF: vii; cf. 14, 134). They pay little attention to twentieth-century feminist scholarship or activism (JGF: 7–8, 126).9 Despite their use of gender-neutral language, the subject of their theories continues to be masculine: “major contemporary Anglo-American theories of justice are to a great extent about men with wives at home” (JGF: 110; cf. 8–9, 13). Questions of gender and of justice within the family are typically ignored, with the consequence that most of these theories occlude the key developmental question of how individuals acquire a sense of justice (JGF: 9–10, 13, 21). Okin continues to insist that the family is a flashpoint for questions of justice and sets out to explain why. In most heterosexual households, most of the unpaid domestic work is done by women (JGF: 5, 25, 95), which is unfair for a number of reasons. First, much of the work is boring, repetitive and unpleasant. Okin could add that it is typically solitary and isolating, or, where childcare is involved, lacking in adult company. The hours of work are potentially unlimited. The work is unpaid, making the full-time domestic worker dependent on the income of any family member in the paid workforce. The skills and experience gained through domestic work are typically not valued or recognized in the paid workforce, placing the full-time domestic worker at a disadvantage if she tries to move into the paid workforce (JGF: 103, 150–51). While conceding that under favourable circumstances, childrearing “can be immensely pleasurable and challenging” (JGF: 116 n.), Okin says little about the appeal or advantages of domestic work. While much housework is boring and repetitive, minding children, discovering their personalities and contributing to their development can be far more creative, stimulating and enjoyable than paid labour that is only repetitive and unpleasant. The unpaid domestic worker spends no time, energy or money in commuting to and from the workplace. She exercises more discretion over her time than do most paid workers, and is free of the surveillance and disciplinary measures (fixed meal and rest breaks, reviews and evaluations, productivity targets) imposed in many workplaces. Faced with these countervailing considerations, Okin would probably acknowledge them but go on to ask why so few men have availed themselves of the rewards and pleasures of unpaid 27

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domestic labour if they are so great. She would also argue that if a person of either gender made a free and informed choice to engage in full-time unpaid domestic work within any family form, that would be their prerogative. At the moment, however, many women do so because it is expected or required of them, or because it makes economic sense given their lower incomes than men’s. This is not, currently, a fully free choice. Okin would add that those who make the choice still need protection from the vulnerability that marriage can create (see below). Increasingly in Western societies, most women in gender-structured households also engage in some form of paid employment. Yet even when both adult members of a heterosexual household are in paid employment, women still perform more of the unpaid domestic labour (JGF: 153). This is not simply unjust in itself, but carrying more than their share of unpaid domestic work has deleterious effects on women’s opportunities in paid employment and other areas of life. As Okin writes, “the unequal distribution of rights, benefits, responsibilities, and powers within the family is closely related to inequalities in the many other spheres of social and political life” (JGF: 113; cf. 125, 132, 159). And even though increasing numbers of woman participate in it, the paid workforce is still premised on the assumption that the worker’s daily needs for food, shelter, clothing and the care of any dependents are being met by someone who is not full time in the paid workforce. Schools similarly operate on the assumption that there is someone who is not a full-time member of the paid workforce to deposit and collect children during the week and care for them during holidays (JGF: 5, 155–6). It is typically women who choose paid employment that will give them the flexibility to adjust to children’s needs and schedules. Or they take time out, or resign, from paid work in order to care for children (or other dependents). Yet interruptions to paid employment retard women’s progress in the workforce and result in lower pay and seniority compared to male counterparts (JGF: 5). They also reduce a woman’s retirement fund, if she has one. Domestic responsibilities thus put many women at a competitive disadvantage in the workplace compared to men (JGF: 154–5) and this can have adverse long-term consequences for a woman’s financial situation. Women’s disadvantage in the paid workforce is further compounded by the fact that the sort of jobs that many perform are paid less than those typically done by men (JGF: 144–5, 148). When the work is the same, similar or requires comparable skill levels, this is intrinsically unfair. However, women’s lower rates of pay simply reinforce their tendency to shoulder the burden of unpaid domestic labour. If women have lower earning potential, then there is a perspective from which it makes sense for them to take time out and care for children or other dependent family members, because this 28

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has less impact on the total household income than would be the case if men took time out. The undervaluing of women’s paid work encourages them to assume more responsibility for unpaid work, which in turn aggravates their disadvantage. Hence Okin’s conclusion that “the inequalities between the sexes in the workplace and at home reinforce and exacerbate each other” (JGF: 132; cf. 159, 166). Whether women in heterosexual households do full-time, unpaid domestic labour or earn less than men do in the paid workforce, this creates some financial dependence on men. A woman in this situation can easily feel beholden and subordinate to her male partner. Okin elaborates on the way in which men and women’s different financial contribution can have ramifications for the power dynamics in their relationship, writing that: belief in the male provider strongly reinforces the domination of men within marriage. Although … many wives actually work longer hours (counting paid and unpaid work) than their husbands, the fact that a husband’s work is predominantly paid gives him not only status and prestige, both within and outside the marriage, but also a greater sense of entitlement … Many divorcing women still see the money their husbands have earned as “his money”. In ongoing marriages too, it is not uncommon for husbands to use the fact that they are the primary breadwinners to enforce their views or wishes. (JGF: 141) Men’s greater financial clout also makes it easier for them to contemplate leaving the relationship (JGF: 167), distributing the exit option unequally between the genders. Even if individual men do not, and have no intention to, exercise this option, women know that men can depart more easily than they can, which reinforces their dependency and possibly subordination. The injustices caused by the dominant division of domestic labour are crystallized and further exacerbated in the event of divorce or family breakdown (JGF: 139, 160–62, 165–6, 168). If, as is usually the case, the female adult member of a heterosexual household earns less than the male, she faces a reduced standard of living in the event of their separation. If, as usually happens, she seeks or simply ends up with primary or exclusive custody of the children, she faces greater expenses as well as reduced income. This can cause a sharp decline in the standard of living for her and the children (JGF: 135, 160–61, 173). Child-support payments may go some way to compensate for this, but a significant number of men default on their financial obligations in the event of a marriage break-up. A woman who has been out of the paid workforce for some time has to re-enter without recent experience or employer references. Okin concludes that “the division of labor in the 29

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typical family leaves most women far less capable than men of supporting themselves” (JGF: 17). All these factors contribute to what Okin calls women’s “vulnerability by marriage” (JGF: 24, 126, 134–70). Her basic claim is that women are economically disadvantaged by participation in a gender-structured household in a way that men are not. This is fundamentally unequal and unjust and is a central area of life that flies in the face of public rhetoric about men and women’s equality (JGF: 142, 170). It can set in well before a woman marries (if she does), for the mere expectation of marriage and children can affect a woman’s choice of career. Envisaging herself as the primary carer of children, she might look for a job with flexibility that might, as a consequence, be lower paying (JGF: 138, 142–6, 159).

3. POLICY PROPOSALS

As well as identifying some of the gender-specific injustices facing many women in liberal societies, Okin proposes a range of measures to alleviate these. To mitigate women’s financial dependence on men, both adults in a heterosexual household would have equal legal entitlement to the income earned by the full-time worker. Employers would pay half of the total income directly to each party (JGF: 181). This would recognize the value of unpaid domestic work and reduce women’s financial dependence on men, diminishing at the same time other forms of subordination that can flow from this.10 Okin does not offer suggestions for the increasing number of households where both women and men participate in paid employment, but presumably the principle would be that all salary would be shared equally between the household’s adult members. Pay cheques of both workers could be split evenly, or a portion of the better-paid worker’s salary could be transferred to the poorer-paid one, so that each received the same total salary.11 Along with household income, Okin recommends that domestic labour be equally divided. This requires men to assume an equal role in childcare. Once again, Okin is not suggesting that all preschool children need full-time care from a parent: she also advocates subsidized (and thus affordable), high quality day care (JGF: 116 n.). Large employers should provide on-site day care, making it easier for parents to combine work and childcare. High quality after-school care is also needed. Okin’s plan to include men equally in childcare would allow men or women to take time off after the birth (or, by implication, adoption) of a child; to work a less than a full-time load in the child’s first year; and to have flexitime provisions for the first seven years of the child’s life. Exercising any or all of these options would incur no penalties for benefits or promotion. The workplace, structured as it currently is 30

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around a masculine model of the worker, would change to acknowledge that full-time workers of either gender are likely to have childcare responsibilities. Okin believes that policies about childbirth need to be separated from policies about childcare in recognition of the fact that while only women can perform the former task, men and women are equally equipped for the latter (JGF: 17, 171, 175–7). As we have seen, women’s vulnerability by marriage is most acute in the event of relationship breakdown. To rectify its deleterious effects, Okin proposes that if there are dependent children in the household, the noncustodial parent should pay the other enough to maintain both households at the same standard of living. Such transfers should last as long as the division of labour within the marriage did or until the youngest child is in school and the custodial parent is better placed to find paid work (JGF: 183). The basic principle informing Okin’s policy recommendations is that women should not be disadvantaged by their role in the family any more than men are. Her proposals for making the family more just and reducing women’s vulnerability by marriage are, moreover, mutually reinforcing. If both men and women are expected to have some childcare duties for part of their working lives, women are less likely to choose more flexible but lower paying careers and to be economically disadvantaged in the workplace. In the event of family breakdown, they will be better able to cope financially. Conversely, Okin hopes that fathers who have been more involved in childrearing would be less likely to default on alimony payments (JGF: 179; cf. Okin & Reich 1999: 289). She believes that while many individual women and children would benefit from these changes, society as a whole would too, because it would, for the first time, move towards a fully humanist conception of justice: one that did not advantage or disadvantage individuals on the basis of gender (JGF: 23–5, 105, 183–4). This would bring practice in this important domain in line with public rhetoric about gender equality. Having laid out the crux of Okin’s argument about identifying and alleviating injustice within the family, it is instructive to reflect more carefully on some of the key terms in her analysis, such as marriage, the family and women. This will facilitate a clearer view of her project as well as affording insights into some of its limitations.

4. DIFFERENCES AMONG FAMILIES

Okin does not seem to restrict her analysis of marriage to those who are legally married, so when she uses the term “marriage”, we should read her as including marriage-like relationships in which two heterosexual adults live together, enjoy affective intimacy and share resources with a view to this arrangement 31

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persisting across time. While some of what she says about injustice in the domestic sphere applies to heterosexual adults in marriage or marriage-like relationships, it is most relevant when children are part of the package. Her approach could be justified empirically: most heterosexual people who marry for the first time expect to have children; those marrying for a second time (or more) often already have children and might desire more. The social meaning of marriage is also closely bound up with the production (or procurement) and nurture of children. Even though Okin recognizes that the empirical composition of the family is changing, its dominant image in the social imaginary of Western societies is still that of a heterosexual couple with children.12 It is this reality and this image that she typically addresses. Some of Okin’s readers fear that she too readily equates the family as such with its gender-structured form. Will Kymlicka (1999) reads her as oscillating between a standard and a less restrictive conception of the family. He criticizes Okin’s failure to ask the fundamental question of justice in this domain: who is entitled to form a family and on what basis? Kymlicka further contends that her presumptive norm of the heterosexual family is hard to reconcile with her anticipation of gender’s disappearance.13 Sara Rapport (1991) infers that Okin’s ideal is a reconstituted nuclear family. Martha Fineman (1991) notes that most of Okin’s proposals for making the family more just apply to its heterosexual, biological variant, whereas a comprehensive approach to family justice would attend to all its forms. Joshua Cohen (1992: 263 n.2) observes that it would be more consistent for Okin to refer to families rather than the family. Jaggar concedes that Okin acknowledges the variety in family forms and the reduction in the number of gender-structured households, but concludes that she mentioned nontraditional families “only in passing and never explored their potential for justice” (2009: 172). While she often refers to “the family” in a way that could sound singular and essentialist, WWPT testified to Okin’s awareness of the different forms family relations can take. This persists in JGF where she writes: Fewer … families now fit the usual, though by no means universal, standard of previous generations, that is, wage-working father, homemaking mother, and children. More families these days are headed by a single parent; lesbian and gay parenting is no longer so rare; many children have two wage-working parents, and receive at least some of their early care outside the home. (JGF: 18) Not all families are, therefore, gender-structured: single-parent families by definition are not, while adult members of gay and lesbian families avoid falling into gendered roles, at least when it comes to the division of domestic 32

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labour (JGF: 139–40, 149 n.). Okin not only recognizes the growing variety of family forms but also welcomes it as part and parcel of her liberal commitment to free choice and privacy as well as of her ongoing desire to reform the family. She joins other contemporary feminists in advocating: that “family” be defined so as to include any intimately connected and committed group … The family is in no way inevitably tied to its gender structure, but until this notion is successfully challenged, and nontraditional groupings and divisions of labor are not only recognized but encouraged, there can be no hope of equality for women in either the domestic or the public sphere. (JGF: 125; cf. 1991c: 75) In light of this, Kymlicka’s criticism of Okin for failing to ask who is entitled to form a family in the first place seems unfounded. When Okin writes, as she routinely does, about the family in an unmodified way, she should be understood as making a quasi-empirical claim whereby the term “the family” stands for “the heterosexual family form that is dominant in the social imaginary of liberal societies”. She is not intending to make normative or essentialist claims; she is not promoting this form of family life; she is not aiming to exclude non-heterosexual people from the institution of marriage, should they wish to participate. On the contrary, she is, as we have just seen, committed to a more varied and flexible conception of the family with maximum space for free intimate association. Okin could defend her focus on the dominant family form precisely because it is dominant and thus affects more people than do other family arrangements.14 Other forms of family are less gender-structured and therefore less likely to need the sort of reforms she advances. However, her point about women’s lower earning capacity compared to men’s is directly relevant to single-parent households headed by women (i.e. the majority) and to lesbian households. In both cases, family income will be disadvantaged by women’s general tendency to earn less than men. Equal pay for equal work or work of comparable worth is essential for the well-being of such families, to say nothing of its contribution to equality and justice for women in general.15 While some of the criticisms of Okin’s tendency to equate the family with its gender-structured form seem to misunderstand her purpose and position, this tendency is evident, and problematic, in her discussion of the family’s role in moral education. This important aspect of Okin’s thought warrants further discussion in its own right before we consider how or perhaps whether it can be made compatible with her liberal ideal of a diversity of family forms. JGF elaborates on WWPT’s claim about the family being 33

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the first school of social relations. Okin maintains that the gender-structured family hampers a society striving to be just and cautions that: unless the first and most formative example of adult interaction usually experienced by children is one of justice and reciprocity, rather than one of domination and manipulation or of unequal altruism and one-sided self-sacrifice, and unless they themselves are treated with concern and respect, they are likely to be considerably hindered in becoming people who are guided by principles of justice. (JGF: 17; cf. 14, 31, 135) In the family children imbibe their first lessons about gender, and in particular which gender does what in the household and the paid workplace. If children of both genders see women doing the bulk of the domestic work and taking primary responsibility for children, they will grow up believing that this is what women do. Drawing on Nancy Chodorow’s arguments about the reproduction of mothering, Okin reports that “so much of the social construction of gender takes place in the family, and particular in the institution of female parenting” (JGF: 16; cf. 106–7, 116 n.). The family is also the first place where children acquire a capacity for reciprocity and empathy. Okin describes “a sense of justice that grows from sharing the experiences of others and becoming aware of the points of view of others who are different in some respects from ourselves, but with whom we clearly have some interests in common” (JGF: 18). Extended interaction with both parents is more likely to foster this ability to sympathetically adopt different standpoints. And Okin seems to suggest that children of either gender should learn to empathize with people of both genders. Such education would be fostered by men taking a greater role in childcare, for “unless they are parented equally by adults of both sexes, how will children of both sexes come to develop a sufficiently similar and well rounded moral psychology to enable them to engage in … deliberation about justice?” (JGF: 100). Shortly after she claims that “only children who are equally mothered and fathered can develop fully the psychological and moral capacities that currently seem to be unevenly distributed between the sexes” (JGF: 107). Although her general point about the family being the first school of social relations is clearly indebted to Mill, at one point Okin articulates the novel idea that the family can educate adults as well as children in justice. Were the task of rearing children more evenly shared between men and women, men’s empathic capacities would expand, for: the experience of being a physical and psychological nurturer – whether of a child or of another adult – would increase the 34

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capacity to identify with and fully comprehend the viewpoints of others that is important to a sense of justice. In a society that minimized gender this would be more likely to be the experience of all of us. (JGF: 18; cf. 100) The pedagogical arrow thus points in both directions: in a more egalitarian family, children witness more just relations between their parents, just as both parents learn from their children how to see things from another’s point of view. Closer inspection reveals two views about the family’s role as the first school of social relations in Okin’s work: a stronger and a softer one. According to the stronger view, a just family is a sine qua non for producing just citizens. Okin declares that “the structure and practices of the family must parallel those of the larger society if the sense of justice is to be fostered and maintained” (JGF: 22).16 According to the softer view that can also be discerned in her work, a just family assists rather than hampers the process of generating just citizens. In a passage cited above, Okin predicts that those who grow up in gender-structured households are “likely to be considerably hindered” in becoming just adults (cf. 1992b: 65). This does not render them incapable of just interactions with their fellow citizens nor condemn them to a lifelong inegalitarian view of the sexes. From this softer position, Okin can concede that the education in injustice currently provided by genderstructured households is not insuperable. Lessons learned in the family can be overcome, but given the family’s immense power of socialization (JGF: 22), this requires great effort. Indeed, in her estimation the vast bulk of families have not hitherto been just, so if the just family were a sine qua non of the just society, we would be forced to conclude that no societies had ever fostered or maintained a sense of, nor ever practised, justice. Whatever weaknesses exist in liberal societies, they are not wholly devoid of any sense of justice. Were they so devoid, Okin’s arguments about women could gain no purchase because they appeal to an existing sense of, and discourse about, justice (see Chapter 3, §2). The same applies to lessons about gender; most individuals have grown up in gender-structured households, yet some have overcome, to a greater or lesser extent, the lessons imbibed there about gender inequality (cf. Rapport 1991: 853). The more defensible version of Okin’s position on this issue of the family as the first school of social relations is, therefore, the softer one: that growing up in an egalitarian household provides a more consistent education in justice for citizens (JGF: 185). This sort of “home schooling” avoids the friction that exists between lessons learned in gender-structured families and the requirement of the liberal polity to treat one’s fellow citizens as free and equal individuals. This softer position is also more compatible with Okin’s willingness, 35

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in the interests of pluralism, to continue to allow gender-structured families, for the sine qua non position would mean that children raised in those families could not become just adults (cf. Columbia Law Review 1990: 1173). Yet Okin’s claims about the need for a child to be “equally mothered and fathered” in order to develop a capacity for justice poses a problem for both single parenting and same-sex parenting, because children in these families are not parented by persons of each gender (cf. Rapport 1991: 847–8; Cohen 1992: 281; Arneson 1997). The implication of her claim that the capacity for empathy is enhanced by identification with a parent of each gender is that children of same-sex couples or of single parents would be exposed to less diversity, and enjoy fewer opportunities to develop empathy, than children in egalitarian heterosexual families. Their acquisition of a sense of justice would be correspondingly impeded. Given her endorsement of a plurality of family forms, Okin should not welcome this implication that same-sex or single-parent families initiate a sense of justice less effectively than egalitarian heterosexual ones. Okin could reply that what is detrimental to the development of a sense of justice is the reproduction of rigid gender roles, and that this is less likely in families comprising adults of the same sex (cf. Rosenblum 2009: 34). As she writes, “strong empathy and a preparedness to listen carefully to all the different points of view of others … seem more likely to be widely distributed in a society of just families, with no expectations about or reinforcements of gender” (JGF: 101). If the personalities of non-heterosexual people are less bound by gender stereotypes, and if their households are more likely to have an egalitarian distribution of domestic labour, then parenting by a person of each gender seems less essential for minimizing the transmission of stereotyped gender roles. Families comprising same-sex parents are, therefore, less likely to reinforce rigid gender expectations, while single-parent families do not, by definition, expose children to an unequal division of domestic labour. Yet replying with regard to sex stereotyping alone does not seem adequate; Okin implies that coming to know different adults well and seeing their points of view enhances a child’s capacity for empathy and development of a wider sense of justice. Interaction with adults of different genders assists this process. So single-parent and same-sex-parent families still pose a problem for this part of her theory about the acquisition of a sense of justice. When Okin revisits the issue of the family as the first school of moral development ten years after JGF, these questions remain unanswered, for she says little about the moral education provided by single-parent or same-sexparent families. She reiterates that children learn much about social relations from the way their parents interact and recommends that an equal, respectful relationship free of one parent’s financial dependence on the other is a better model of social relations for children who will be citizens in a democracy. 36

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Who does what in terms of paid and unpaid work also sends important messages to children about the appropriate division of labour between the genders. Okin continues to maintain that men and women being equally involved in parenting will increase everyone’s capacity for empathy, and thus better prepare members of such families for citizenship. Men will become more empathic because of their involvement in nurturance; being parented by two people will enable children of either gender to relate to people of both genders; heterosexual marriages will be stronger because the parents are equals; and by splitting their time between paid and unpaid work, each can more easily identify with the other person (Okin & Reich 1999: 285, 289– 90, 296). But the sort of early moral education made possible in single-parent or same-sex-parent families is still not discussed.17 Given Okin’s feminist liberal endorsement of a multiplicity of family forms, and her insistence that the family is a vital school of social relations and the first site for the inculcation of a capacity for justice, her failure to address these questions is regrettable.18

5. DIFFERENCES AMONG WOMEN

Along with the explosion of feminist re-readings of the canon, another of the developments in feminist thought in the interval between WWPT and JGF is the rise of what is called intersectionality. Okin incorporates some of the insights from this literature (JGF: 6–7),19 pausing at various points to consider whether and to what extent her claims about women apply to all women, irrespective of race and class. She thus qualifies her point about larger numbers of women entering the paid workforce by recognizing that black women have long been part of this (JGF: 140). Describing vulnerability by marriage, she notes that black women are less likely than white ones to marry (JGF: 142), which could leave them less subject to this syndrome. However, as we have seen, the mere fact of being married is not decisive in Okin’s diagnosis. Whether women marry or not, the social expectation that they will affects both their own choices and the responses of those around them. Okin also notes that when black women do forge marriage or marriage-like relationships, these are more liable to separation and divorce than are white women’s (JGF: 160), making black women more subject to some of the vulnerability created by marriage. She breaks down alimony payments by race (JGF: 165) and reports that teenage pregnancy, with its attendant economic problems, is more prevalent among poor and black females (JGF: 127).20 Despite such acknowledgement of diversity among women, some of Okin’s readers have charged her with the sort of essentialism Elizabeth Spelman exposes in Inessential Woman: Problems of Exclusion in Feminist Thought. Spelman identifies: 37

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a tendency dominant in Western feminist thought to posit an essential “womanness” that all women have and share in common despite the racial, religious, ethnic and cultural differences … the notion of a generic “woman” … obscures the heterogeneity of women and cuts off examination of the significance of such heterogeneity for feminist theory and political activity. (1988: ix)21 Ruth Anna Putnam (1995: 313) accuses Okin of having white, middleclass women in mind when discoursing about women.22 Rapport criticizes Okin for failing to recognize that “forces like race and class can shape gender and make it an often unstable category” (1991: 842 n.14). Even when Okin does acknowledge differences of race, class and sexual orientation among women, Rapport reads her as ranking these, always putting gender first (ibid.: 845). Rapport further criticizes Okin for neglecting Spelman’s critique of Chodorow’s work as deriving from white, upper-middle-class women and for failing to see that the acquisition of gender identity is always infused by race and class. Indeed, Rapport thinks that many of JGF’s problems derive from Okin’s uncritical appropriation of Chodorow (ibid.: 846). More recently, Jaggar has cast doubt on whether Okin’s claim that the gender-structured family is the linchpin of gender injustice applies to “lesbian or working-class women or women of color; for them, the linchpin may be compulsory heterosexuality or workplace discrimination or racialized violence” (2009: 172).23 It is possible to mine JGF for some responses to these criticisms. For example, Rapport (1991: 850 n.43) rightly reminds us that black women have been engaged in the paid workforce in greater numbers than white women, without acknowledging that, as noted above, Okin herself made this point. Rapport points out that one reason why there are so many femaleheaded households among black communities in the US is that high levels of unemployment prevent black men from forming families (ibid.: 850). Yet the model of the family that assumes a male breadwinner is precisely what Okin is militating against. Given all the important work that families do, there is no reason why men should feel that their sole contribution is income. Indeed, Rapport herself conjectures that “it seems safe to speculate that African Americans have not escaped the grip of the separate spheres ideology, even though much of their history has been spent in de facto opposition to it” (ibid.). Okin’s attack on this ideology would, therefore, seem pertinent for African Americans too.24 Rapport is right to claim that Okin ignores Spelman’s long critique of Chodorow’s arguments about the reproduction of mothering (Spelman 1988: 80– 113, 170–71). However, the main point Okin takes from Chodorow is that when children of both genders see women doing the bulk of the domestic work and taking primary responsibility for children, they grow up believing 38

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that this is what women do (JGF: 131–2). This would apply irrespective of the race or class of the family members (and some families are interracial). Spelman is no doubt correct that gender formation takes different paths according to the family’s class and race (and, we should add, ethnicity) but while these different processes continue to involve more childcare and more domestic work for women, Okin’s argument stands. If it could be shown that men do as much or more of the childcare and domestic work in non-white, non-middle-class families, then Okin’s use of Chodorow would be imperilled, but neither Spelman nor Rapport suggests this.25 In response to Jaggar’s observation that the family might not be the problem for non-heterosexual women, working-class women and women of colour, as indicated several times in the above account of Okin’s position, an individual’s actual participation in a gender-structured family is not determinative. Rather, the functional view of women ramifies through the whole of Western society and shapes many, if not most, of its institutions. It influences how they operate as well as the expectations of many of those operating within them. So while Jaggar is correct that workplace discrimination is a major problem for many women, Okin links this to the functional view that undervalues women’s work. The image or ideology of the family as genderstructured that she attacks has such a strong grip in Western societies that it can also be a source of discrimination for non-heterosexual women. It denies them access to the institution of marriage should they seek it for, in Okin’s assessment, this image of the family is connected to compulsory heterosexuality.26 Nor would Okin deny that families can be a source of comfort and support, whatever oppression individuals might face in the “outside” world. She does not minimize the many and varied benefits that come to individuals through families. Indeed, her awareness of the value of some forms of family life has underpinned her ambition from WWPT onwards to find ways to make the family more gender-just rather than dismiss it as intrinsically oppressive. But even families that do provide their members with support against forces such as racism can still exhibit unhealthy forms of domination. Consider bell hooks’s remarks about being dominated by her father and how “experiencing exploitation and oppression in the home made one feel all the more powerless when encountering dominating forces outside the home. This is true for many people” (1990: 187). When outlining the injustices to women contained in and consequent on the domestic division of labour, Okin acknowledges that different women can be differently affected by this. As the opening lines of JGF announce, “The injustice that results from the division of labor between the sexes affects virtually all women in our society, though not in all the same ways” (JGF: vii). Thus Okin could allow that a woman who pursues a professional career and 39

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chooses not to marry or have children is largely untouched by some of the gender injustices enumerated in JGF. However, some of the injustices she outlines – lower rates of pay, stemming from the functional view that women belong in the household doing its unpaid work, for example – remain relevant. Okin could also reply that the mere fact of being a woman could affect the way co-workers and superiors view her; the expectation that she will become a primary caregiver could affect how she is perceived and treated professionally. But even in the absence of these assumptions, or their having any affect on her progress, Okin could point out that such a woman might be making a choice between family life and career that many men do not make. Her point from WWPT remains relevant: men and women do not enjoy equal opportunities if women’s choice set is more constrained than men’s and if women’s choices carry tariffs that men’s do not.27 So although Okin is attentive to diversity among women and of the need to qualify her generalizations about women in the light of this, we can read her as saying that while the image of the gender-structured family remains so influential, it is imperative to retain gender as the primary focus of analysis and to examine whether and how injustices afflict women, irrespective of class, race or other aspects of identity. She remains adamant that: Many injustices are experienced by women as women, whatever the differences among them and whatever other injustices they also suffer from. The past and present gendered nature of the family, and the ideology that surrounds it, affects virtually all women, whether or not they have ever lived in traditional families. Recognizing this is not to deny or de-emphasize the fact that gender may affect different subgroups of women to a different extent and in different ways. (JGF: 6–7) But nor is Spelman ruling out any attempt to generalize about women: “I am only insisting that whenever we do that we remember which women and which men we are talking about” (Spelman 1988: 186; cf. 172, 174, 183). Her primary concern is with how these generalizations are made and what status they claim. Remarks about the situation of women that are not mere projections of the situation of some (typically white, middle-class women) are permitted, providing they take account of the differences among women and locate commonalities alongside differences. What licenses Okin to generalize about women are the disadvantages they face on the basis of gender. Her category of “women” is political, not metaphysical. She seems to fear that focusing too intently on differences among women could eclipse the ways in which the injustices she outlines affect women rather, or more, than they do men, no matter what their class or 40

INJUSTICES , GENDER, FAMILIES

race. She insists on doing what feminist critics of liberalism charge it to be incapable of: enquiring into the social forces that affect women as a group or class (see Chapter 1, §4). It is also important to keep in mind the sort of claims she typically makes. She is not, for the most part, talking about women’s experiences “from the inside” but analyzing the objective conditions that mark women’s lives more than they do men’s: larger burden of childcare and domestic work, lower pay, vulnerability by marriage. She shows those conditions to be mutually exacerbating. But she says next to nothing about how women interpret or experience these conditions. This neglect of women’s self-interpretations is, as we shall see, a significant impediment to her ability to include other insights from the intersectionality literature. Thus, while Okin’s engagement with the intersectionality literature begins with JGF, it does not end there. As Chapter 5 reveals, this question of differences among women and their significance for feminist theorizing returns in her short, controversial writing “Is Multiculturalism Bad for Women?” It also appears when Okin projects her feminist liberalism onto the international plane, as recounted in Chapter 6. Those fuller discussions highlight some of the shortcomings in Okin’s response to the intersectionality literature. However, before considering in more detail the ability of her feminist liberalism to recognize and respond to differences among women, it is necessary to investigate what sort of liberalism Okin espouses.

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We become critics naturally, as it were, by elaborating on existing moralities and telling stories about a society more just than, though never entirely different from, our own. (Walzer 1987: 65) [W]hen women, who have always been minor characters in the social and political theory of a patriarchal world, are transformed into major ones, the entire cast and the play in which it is acting look very different. (WWPT: 12) In WWPT and in JGF, Okin finds that it is a liberal thinker – Mill and Rawls, respectively – whose work, whatever its shortcomings, holds the most promise for feminist thinking about justice.1 She believes, more generally, that a fuller and more consistent application of liberal values to women’s lives will help to rectify many of the injustices she identifies. Yet, as Kymlicka observes, “Okin never really defines her liberalism” (1991: 92).2 Through a combination of exposition, inference, reconstruction and critical analysis, this chapter explicates the key features of Okin’s feminist liberalism. It proposes that the best way of understanding this at the general level is as a liberalism of shared meanings. She draws her normative concepts from a shared fund of liberal values but goes on to fill them in with feminist content. When the particular content she gives to concepts of equal personhood, equality of opportunity, free choice, the full development of individual personality, pluralism and privacy is unpacked, the meaning of Okin’s liberalism becomes less likely to be shared. These diverging features of her liberalism – its appeal to shared meanings and its innovative content – are conveyed in this chapter’s twin epigraphs.

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1. LIBERALISM IN WOMEN IN WESTERN POLITICAL THOUGHT

Of the four major thinkers examined in WWPT, Mill is the most liberal and the most feminist friendly: indeed, the chapter about him is subtitled “Liberal Feminist”. But Okin presents Mill as an outlier in the liberal tradition and her brief discussions of Thomas Hobbes, Locke and James Mill on women bear this out (WWPT: 197–202). At this stage in her career, there is little evidence that she sees the liberal tradition per se as especially supportive of feminism: it seems to have been J. S. Mill’s distinction to apply liberal views to women.3 However, even Mill ultimately disappoints by affirming a conventional division of domestic labour, according to which married women who are also mothers should devote themselves full time to children while they need such care. For Okin, this limits Mill’s liberal feminism: [A]lthough a very forward looking feminist in many respects, he in no way perceived the injustice involved in institutions and practices which allowed a man to have a career and economic independence, and a home life and children, but which forced a woman to choose between the two. His refusal to question the traditional family and its demands on women set the limits of his liberal feminism. (WWPT: 230; cf. 226–8, 280)4 To the objection that it would be anachronistic to expect more from a mid-nineteenth-century figure, Okin could take recourse to the different view held by Mill’s companion, collaborator and eventual wife, Harriet Taylor. Okin portrays her as: upholding the importance of continuous financial independence for women; seeing women’s unpaid domestic work as contributing to family income; and holding out the possibility of women simultaneously having a family and a career as men do (WWPT: 228–30). Taylor’s feminist liberalism was thus more thoroughgoing than Mill’s. Although Okin never articulates this in any explicit way, the normative core of WWPT rests with a cluster of liberal values, such as: equal personhood; equality of opportunity; free choice; and the full development of individual personality. She is effectively showing to what extent past and present political thought, legal decisions and social practices within Western societies in general, and the US in particular, have failed to live up to those ideals. Thus one of Okin’s major complaints throughout WWPT is that women have not been, and are still not in many regards, treated as men’s equals. Yet in “a society which claims to be founded on the principle of human equality … women must be treated in every respect – politically, socially, economically – as the equals of men” (WWPT: 304; cf. 293). 43

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This could suggest that she recommends equality of outcomes between the sexes. However, a careful reconstruction reveals a slightly different position in WWPT. Women as a group lack equality with men as a group in two different ways. First, women are not valued as ends in themselves. Instead, Okin repeatedly finds that they have been viewed in functional terms (Chapter 2, §1). The second sense in which women lack equality with men is that they are not encouraged to choose from the same range or combination of options, with the same rewards and without any greater penalties than men might incur. In this regard, Okin echoes, updates and applies more consistently Mill’s call for the removal of all barriers to women having the same opportunities to achieve the same things as men. This could, in principle, generate different outcomes between the genders without betokening injustice. Like Mill, Okin feels able to generalize about women because they have been treated as a homogenous group by political and legal thinkers and by social institutions. Women are united by their disadvantages, burdens and impediments. Once these are lifted, it is impossible to know what salience sex or gender will have in social life or personal identity. Only when women come to be treated as ends in themselves and to have the same choice set as men will more be known about their capacities and inclinations. Invoking Mill, Okin declares that no one can know what women are like, how they resemble and differ from men, “until members of the two sexes are enabled to develop in the absence of differential treatment during the socialization process and throughout their lives” (WWPT: 297). Okin also shares Mill’s view that the exclusion of half of the population from exploring its talents to the fullest has deleterious consequences for men too, for “persons of both sexes have been unable to develop freely their own personalities and potential” (ibid.). Although she typically portrays men as a group as enjoying greater freedom of choice and opportunity for self-development than women as a group, she implies here that laws and conventions imposing a particular role on women also, ipso facto, impose limitations on men by imputing to them a particular role in the family and a fixed set of expectations about how to live. So, for example, if married heterosexual women are portrayed as their husbands’ dependents, and therefore not really in need of a full salary or their own health benefits, married men are correspondingly portrayed as attached to a dependent rather than an equal. Although WWPT focuses on women, concern for the restrictions placed on the free individual development of both genders can be recovered from the text, which is in keeping with Okin’s liberal values of equal personhood, equal opportunity and free individual choice. Okin agrees with Mill that the realization of equal opportunity for both genders will facilitate free individual choice and the development of individual personality.5 Indeed, once this experiment is underway, it might not even prove helpful to generalize about men and women any more. 44

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The only reviewer of WWPT to comment on Okin’s liberalism was Katherine O’Sullivan See who presents Okin as providing “a tentative (albeit implicit) case for liberalism” (1982: 180). See raises a number of questions about Okin’s position, including her failure to confront directly what feminist justice is. Nor does Okin supply a clear account of what should be retained from the liberal tradition nor address its relation to capitalism (ibid.: 184, 187).6 As we shall see, Okin’s appropriation of liberal values for feminist purposes becomes more explicit as her work develops. Her eventual adoption of the Rawlsian framework also allows her to largely sidestep the question of capitalism, for Rawls offers a form of liberalism that is not necessarily wedded to a capitalist mode of production but which is committed to a considerable degree of resource distribution in the direction of the least advantaged members of society. When it comes to the economy at large, Okin shares Rawls’s focus on distributive justice – not just of wealth but also of opportunities, responsibilities and burdens – rather than directing attention to the justice (or otherwise) of production and wealth creation (cf. Okin 2004: 1539).7 When it comes to the household, Okin claims to be concerned with distributive justice there too (JGF: 135–6, 141). But this is misleading, for she is also preoccupied with production in this forum: the production of care, the reproduction of individuals on a daily basis that occurs in domestic work, the execution of household labour, and so on. All these things should be thought of as productive activities, with Okin calling the justice of these relations of production into question.

2. SHARED MEANINGS

Okin’s arguments about women appeal to an existing sense of, and discourse about, justice. She does not provide an argument for the value of liberalism itself; she does not defend liberalism from the ground up. Rather, she takes her liberalism where she finds it and argues from there. This was hinted at in the above quotation from WWPT declaring that in “a society which claims to be founded on the principle of human equality … women must be treated in every respect … as the equals of men” (WWPT: 304). JGF makes clearer that Okin’s endorsement of liberal values for women is tied to the existence of a liberal society; indeed, most of its analysis is highly particularistic, being directed at, and deriving all its empirical evidence from, the US (cf. Putnam 1995: 313 n.13; Young 2009: 223, 227).8 There Okin observes that “we place great value on our freedom to live different kinds of lives” and shortly after announces that “If we are to be at all true to our democratic ideals, moving away from gender is essential” (JGF: 171–2, emphasis added). Okin’s feminist liberalism is contextual rather than abstract, relying on the presence of 45

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liberalism in the wider society and deriving the normative power of its claims from the belief that extending liberalism to women will make liberalism more consistent, more thoroughgoing and truer to its own ideals.9 In this regard then, Okin joins Rawls in appealing to the presence of liberal ideas “in the public political culture of a democratic society” (Rawls 1993: 13; cf. 8, 25 n.27, 43, 175). Justice as fairness “starts from within a certain political tradition” (ibid.: 14) and, as Burton Dreben remarks, taking this fund of political ideas as your starting-point means that “you do not argue for it. You do not ground it. You see what it leads to” (2003: 323).10 But Rawls did not move explicitly towards a liberalism of shared meanings until after TJ, which is the Rawlsian work Okin draws from in JGF. Because it cannot be the Rawls of PL, the influence on Okin’s appeal to shared liberal values is more likely to be Walzer. In Interpretation and Social Criticism, Walzer argues that philosophizing about justice must be contextual, and that those wishing to criticize some of their society’s practices have more legitimacy plus a greater chance of success if they invoke standards of justice already present in that society that are not being fully respected in particular instances. Ruling groups justify their power in abstract and generalizable, rather than particular, terms, which enables those excluded from power or subordinated to use these categories to argue with the powerful against their exclusion or subordination. Pressing the critical possibilities of shared understandings is preferable to appealing to trans-historical or external conceptions of justice (Walzer 1987: 40–43).11 Okin has some positive things to say about the potential of Walzer’s thought for feminist purposes. She points to his notion of complex equality in Spheres of Justice, according to which different spheres of life can operate according to different principles of distribution yet still produce fair outcomes overall. What matters is that inequalities in one sphere not spill over into others (JGF: 62, 68, 112; cf. Baehr 1996: 51). According to this logic, gender inequality in one sphere should not seep into others in the way it currently does. Okin also credits Walzer with attending to questions of gender and family justice (JGF: 111, 114, 116). However, my suggestion that Okin’s liberalism effectively adopts Walzer’s notion of shared meanings is complicated by her overt criticism of Walzer, for on balance she finds his method for thinking about justice problematic. A major reservation is that there are no shared understandings about gender (JGF: 67–8, 112). She also worries that theories that “rely on ‘shared understandings’ … [tend] to reinforce patriarchy by neglecting to examine the effects of past and present domination on these understandings” (JGF: 110; cf. 112). She fears that Walzer’s way of proceeding provides no basis for criticizing caste-based societies and analogizes gender to caste because in both cases “an inborn characteristic determines dominant or subordinate status in relation to social goods over 46

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a whole range of spheres” (JGF: 65; cf. 64). Overall, Okin doubts the critical potential of a method that relies on ready-to-hand social meanings, suspecting that this will simply affirm the status quo (JGF: 62).12 Yet despite her criticism of Walzer’s notion of shared meanings, Okin’s vindication of liberalism for women begins in just that fashion. The fund of shared social meanings she draws on concerns not gender but liberalism. The social meanings available to her for thinking about gender justice are liberal values, and she argues for their extension and consistent application to women and the household. With regard to her doubts about the critical potential of shared meanings, it is true that liberalism has historically been formulated by and about (some) men, and it can easily be argued that relations of gender domination have been a powerful part of this tradition. As Okin herself announces, “Liberalism’s past is deeply and, for the most part unambiguously, patriarchal” (1989c: 40). However, one of the things that makes her a feminist liberal is the conviction that once the gender-specific ways in which liberal concepts have been realized is exposed, these same concepts are sufficiently malleable to apply meaningfully to women, and can be extended to cover questions of justice within the family, paid workplace and beyond. Thus, despite her concerns about the Walzerian approach, Okin does not think the values of liberalism have been so corrupted by gender domination as to be irretrievable for feminist purposes. Okin (JGF: 64, 66) remains unmoved by Walzer’s suggestion that social criticism is made possible by the fact that ruling groups invoke universal terms to justify their power. Yet the history of modern Western feminism, beginning with Wollstonecraft, illustrates that deploying existing universal categories has been an invaluable strategy. Wollstonecraft argued that women were humans too, capable of reason and self-development, and that they should share the “rights of man and the citizen”. This style of argument has been adopted by many of her successors within the liberal tradition: indeed, Okin admits as much when referring to “those throughout history who dared to suggest that accepted principles about rights and equality be extended to women” (JGF: 67). Here she nominates Abigail Adams along with Mill and Wollstonecraft. Thus precisely because liberal values have been cast in abstract terms, it has been possible for women to insist that they are also persons, who should enjoy the same powers and privileges as male persons. Okin makes this case herself in responding to MacIntyre: [T]he liberal tradition has [not] been free of neglect of and rationalization for women’s oppression – far from it. But, as many feminist theorists recognize, a number of the basic tenets of liberalism – including the replacement of the belief in natural hierarchy by a belief in the fundamental equality of human beings, and the 47

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placing of individual freedom before any unified conception of “the good” – have been basic tenets in the development of feminism, too. (JGF: 61; cf. 2004: 1547 n.40) This is not to say that immanent social critique will be available or successful in every context: Walzer is not advancing a universal defence of the social meanings approach to social criticism! If a just or egalitarian society “isn’t already here – hidden, as it were, in our concepts and categories – we will never know it concretely or realize it in fact” (Walzer 1983: xiv, cited in JGF: 63).13 But this poses no problem for Okin because, in her estimation, a genderjust society lies latent in liberal concepts and categories. What is needed is for theorists to lay this potential bare.

3. EQUALITY OF PERSONHOOD, OPPORTUNITIES AND OUTCOMES

Okin’s commitment to the equal personhood of men and women is a centrepiece of her feminist liberalism (cf. Cohen 2009: 42). Indeed, she believes that whatever their differences, all feminists are united by the “conviction that women are human beings in no way inferior to men, who warrant equal consideration with men in any political or moral theory” (JGF: 61; cf. 23). One of her recurring complaints about family dynamics is that women are often not treated as separate individuals, as ends in themselves, who should be free to define their own ends. Still seen in functional terms, women have their interests assimilated or subordinated to those of the family (JGF: 113). It remains necessary to remind readers that “however much the members of families care about one another and share common ends, they are still discrete persons with their own particular aims and hopes, which may sometimes conflict” (JGF: 32; cf. Cohen 2009: 42). It has long been recognized by theorists of justice that family background and level of wealth and education can advantage or disadvantage a person (JGF: 116, 134). Yet those concerned with equality of opportunity in liberal societies have focused on relations among families to the neglect of relations within them (ibid.: 134). Okin shares, and strives to extend, the liberal concern with equal opportunity by examining the extent to which the gender structure within families affects life chances (ibid.: 134–5, 147). A concern with females having access to the same opportunities and choices as males thus informs JGF. This is manifest early in the book, in a passage that could serve as its mission statement: “In a just society, the structure and practices of families must afford women the same opportunities as men to develop their capacities, to participate in political power, to influence social choices, and to be economically as well as physically secure” (ibid.: 15; cf. 22). 48

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But along with this accent on equal opportunity, Okin pays more attention to equality of outcomes between men and women in JGF than she did in WWPT, insisting that the division of domestic labour be equalized for gender justice to be realized. Closer inspection reveals this goal of equal outcomes to operate at two levels in JGF. At one level is her premise that an equal division of domestic labour is a prerequisite for genuine equality of opportunity between the genders in other areas of activity. Unless and until the unpaid and largely unrecognized work of the household is shared equally by its adult members, women will not have equal opportunities with men within the family or in other spheres: opportunities for free time, participation in politics, recognition, security or money (ibid.: 116). However, the goal of equal outcomes operates at another level too, for Okin’s musings about what a gender-just society would look like reflect an expectation of not just equal opportunities but also equal outcomes for men and women across a whole range of areas. A future in which men and women share domestic responsibilities equally would also be one in which they “participated in more or less equal numbers in every sphere of life, from infant care to different kinds of paid work to high-level politics” (ibid.: 171, emphasis added; cf. 12, 104, 107, 179, 184). She thus expects that greater equality in the household will redress women’s under-representation in political and other institutions (cf. Okin 1992b: 69, 71).14 So in JGF, the idea of equal outcomes serves first in the domestic realm to facilitate equal opportunities between men and women in other areas of life, but second as an ideal to be realized across most, if not all, areas in a genderjust society of the future. This second version of the ideal not only represents the least liberal element of Okin’s theory,15 but it is also hard to reconcile with some other aspects of her liberalism, such as her respect for pluralism and for individual choice and freedom.16

4. PLURALISM

Liberals typically accept that when equal opportunity meets free individual choice, unequal outcomes might be generated. In making equal outcomes in all spheres the presumptive norm of a gender-just society, Okin seems to be reducing the role of individual choice. At one point she makes an awkward attempt to reconcile equality of outcomes with freedom of choice by saying that “We must work toward a future in which all will be likely to choose … the equal sharing by men and women of paid and unpaid work, of productive and reproductive labor” (JGF: 171). From a liberal perspective, the idea of all individuals freely choosing the same course of action seems either wholly unrealistic or worryingly homogeneous! This tension is compounded 49

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by the fact that JGF evinces more awareness of pluralism than did WWPT, for along with continuing to acknowledge and encourage a diversity of family forms, Okin demonstrates a greater sense of the diversity within the category “women” and observes the absence of social consensus about the meaning of marriage or gender (JGF: 9, 24, 67, 112, 139–40, 171–2, 180). She effectively acknowledges that not all women, let alone all men, will support her feminist liberal agenda (JGF: 67). Okin’s attempt to marry the diversity created by individual choice with increased gender justice reappears in the following passage: Since evidently we do not all agree about what it [marriage] is or should be, we must think in terms of building family and work institutions that enable people to structure their personal lives in different ways. If they are to avoid injustice to women and children, these institutions must encourage the avoidance of socially created vulnerabilities by facilitating and reinforcing the equal sharing of paid and unpaid work between men and women, and consequently equalizing their opportunities and obligations in general. (JGF: 169) She begins by acknowledging diversity – “we do not all agree” – and the language of “encouraging avoidance” and “facilitating” indicate that she would not compel all families to divide domestic labour equally. The term “reinforcing” is stronger, while her conclusion that encouraging, facilitating and reinforcing have the effect of “equalizing their opportunities and obligations” is stronger still. Whatever the verbal slippage in this passage, Okin seems to be suggesting that in a just society institutions will be designed to promote one type of behaviour (equal outcomes for men and women) while permitting, but not encouraging, deviations.17 According to Nancy Rosenblum (2009: 28), Okin found state interference more difficult to accept than its provision of protections and incentives, and this seems to be one illustration of that preference. She accepts, perhaps reluctantly, that even with increased gender justice not all families will choose an equal distribution of domestic labour. But in a more just society, such a choice could be freely made and would be done so without the disadvantages that currently accompany it. Built-in protections would insulate those who made this choice from its potentially deleterious effects (JGF: 24, 172, 175; cf. 1992a: 336; 1998a: 134; Okin & Reich 1999: 285, 289–90; Yuracko 1995: 36–7). In a more gender-just society, such a choice need not be shaped by women’s lesser earning opportunities in the paid workforce, and so would be freer than it is now. Indeed, Okin could argue that only in a more gender-just society would the choice of a gender-structured household represent a free choice. 50

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Okin admits the tension between these goods of individual freedom on the one hand and justice on the other, concluding that the arrangement of domestic life can be seen as part of both the good and the right (JGF: 171). As part of the good, liberal theory would leave the arrangements of domestic life to individual choice, providing that no harm was done to others. As part of the right, liberal theory would make this a matter of justice, and legitimate political interference with individual choices. It seems from JGF as a whole that Okin thinks that domestic arrangements should be seen as part of the right rather than of the good. As she claims: domestic life needs to be just and to have its justice reinforced by the state and its legal system. In the circumstances of the division of labor that is practiced within the vast majority of households in the United States today, women are rendered vulnerable by marriage and especially by motherhood, and there is great scope for unchecked injustice to flourish. (JGF: 126) Here she focuses on harm to women, but she also contends that genderstructured households harm both male and female children by creating the expectation of rigid gender roles. They harm society by hampering its members’ development of a sense of justice (Chapter 2, §4). Ultimately it seems that Okin believes, as all liberals do, that pluralism can legitimately be circumscribed by justice. Unlike most of her liberal predecessors, however, she applies this reasoning to the household. Yet while there is nothing inherently illiberal about Okin’s preference for justice over pluralism, she is unwilling to go too far in her recommendations. Here her liberalism, with its respect for free choice and pluralism, seems to constrain or at least temper her feminism, with its emphasis on household justice.18 It is a pity that Okin did not grapple with these apparent dilemmas between her liberalism and her feminism, and between justice and pluralism, and either show how they might be reconciled or, if this were not possible, at least acknowledge the conflict. The closest she comes is her admission that “In the face of these difficulties – balancing freedom and the effects of past choices against the needs of justice – I do not pretend to have arrived at any complete or fully satisfactory answers” (JGF: 172). The dilemma of pluralism reappears in Okin’s writings on women and group rights (Chapter 5), while the question of how much state intervention in domestic life Okin recommends is examined more fully in Chapter 14. As this book’s explication of contemporary feminist liberalism unfolds, it emerges that the question of when to call on the state to enforce ethical matters is a vexed one for all feminist liberals, so Okin is not alone in wrestling with this challenge. However, in her case the failure to fully acknowledge, let 51

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alone resolve, these tensions within her liberalism and between her liberalism and her feminism becomes more explicable if her liberalism begins as one of shared meanings. It would not be surprising for incongruities, conflicts and even contradictions to exist in any fund of socially shared political ideas and ideals. These are likely to be a loose congeries of ideals and values that might not mesh seamlessly together into a coherent whole. Okin seems to have drawn from this well of shared liberal meanings without enquiring too deeply as to whether the values she invokes and the particular content she gives them fit comfortably together.19

5. PRIVACY

Another liberal value to receive more attention in JGF than in WWPT is privacy. Privacy has typically been invoked by liberals as a way of keeping the state out of a particular domain, such as property ownership and alienation, workplace arrangements, the family, religion or sexuality. Yet Okin’s image of a gender-just society requires if not more, then certainly different, state intervention in the domestic sphere than is currently the case; for example, the division of earned income and the sort of alimony laws she proposes would need state enforcement. It thus seems that in trying to bring justice to the household, Okin is willing to sacrifice a large measure of the traditional liberal understanding of privacy. This could be another area where her feminism and her liberalism drive in opposite directions. Okin has recourse to two responses to this suggestion that her feminism compromises, rather than respects, the liberal value of privacy. First, she joins other feminist theorists in pointing out that the idea that the state is not involved in the family is a myth: “the domestic sphere is itself created by political decisions, and the very notion that the state can choose whether or not to intervene in family life makes no sense” (JGF: 111). She reminds us that “Who can marry whom, who is legally the child of whom, on what grounds marriages can be dissolved … are all directly determined by legislation” (JGF: 130; cf. 129). As awareness of domestic violence, marital rape and child abuse has risen, the state has become more involved in family life in the interests of justice and protection of endangered individuals (JGF: 129–31). Given the power differentials among family members, any argument that the state should stay out of the household is tantamount to supporting its most powerful members, and thus a violation of the liberal respect for equal personhood (Okin 1991c: 83, 86).20 So for Okin the issue is not whether the state plays a role in the domestic realm but how, and she believes that justice requires it to act in ways that reduce women’s vulnerability by marriage: “The state and its laws, which cannot avoid playing a crucial role in marriage and 52

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the family, might do so in ways that are more just and equitable than they do at present” (JGF: 131). Second, in response to the charge that she is compromising, rather than continuing, the liberal value of privacy, Okin points out that the traditional approach has been to talk about privacy as a good for individuals but to confer it on heads of households only. It was effectively family, rather than individual, privacy and served to shield family dynamics from scrutiny. The liberal conception of privacy thus has a patriarchal patina that Okin seeks to shed; in accordance with her moral individualism and concomitant insistence that the family not be treated unreflectively as a unit, she advocates that the good of privacy be acknowledged for each person individually. The appeal to privacy should no longer be invoked to exclude familial dynamics from consideration in terms of justice. Okin thus values liberal privacy only in so far as it is a genuinely individualized good (1991c: 70, 83–6). This liberal value would, moreover, become truer to itself by being distributed among individuals rather than aggregations of individuals. So notwithstanding her insistence that a fully humanist theory of justice requires “thorough examination and critique” of the public–private dichotomy (JGF: 111),21 Okin does not repudiate the traditional liberal value of privacy. She explains that: Challenging the dichotomy does not necessarily mean denying the usefulness of a concept of privacy or the value of privacy itself … Nor does it mean denying that there are any reasonable distinctions to be made between the public and domestic spheres … Both the concept of privacy and the existence of a personal sphere of life in which the state’s authority is very limited are essential. However, such a sphere can be just and secure only if its members are equals, and if those who must be temporarily regarded as unequal – children – are protected from abuse. (JGF: 127–8; cf. 116–17, 174)22 In a writing from the same year as JGF, Okin says that she adheres to liberalism because “It values the individuality that is promoted and preserved by the respect for personal preferences and for the need for privacy” (1989c: 40). She later lists three reasons for endorsing some liberal views about the value of privacy: it makes possible “[i] the development of intimate relations with others … [ii] the space to shed … roles temporarily, and … [iii] the development of mind and creativity” (1991c: 90). But rather than elaborate on the value and meaning of privacy herself, Okin typically endorses the work of Anita Allen (JGF: 128; cf. 1991c: 76, 90 n.73). Allen is well aware and supportive of the feminist critique of privacy but believes that privacy needs to be rethought rather than jettisoned, for “Relative to the moral justice liberals 53

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demand, privacy and private choice are indispensable foundational goods” (Allen 2004: 134; cf. 144–5, 148).23 While other commentators have noted Okin’s defence of privacy (Satz & Reich 2009b: 7; Jaggar 2009: 167), only Rosenblum examines it any further. Doing so, she finds it “hard to isolate the grounds for liberty and family privacy in Okin’s work: autonomy, respect, the circumstances of reasonable pluralism – all make appearances” (2009: 28). Yet this is of a piece with Rosenblum’s wider observation about Okin failing (or perhaps choosing not) to ground her liberalism, and is compatible with my contention that hers is, at a general level at least, a liberalism of shared meanings. My sense is that Okin’s defence of privacy derives from her promotion of individual liberty, for it is hard for individuals to act freely without some guarantee of privacy. Okin’s defence of personal liberty is, moreover, a dimension of her liberalism that Rosenblum herself repeatedly underscores (ibid.: 16, 21, 29). As I interpret Okin, she thinks that thus far liberalism has paid only lip service to the value of privacy, by seeing it as a property of the family rather than of each individual. Only when privacy is more fully individualized can it achieve its true liberal worth. This also resolves the ambivalence Cohen (2009: 52–4) discerns in Okin’s attitude towards the public–private distinction for, on the one hand, she was wary about it but, on the other, wants to protect a sphere of privacy for each individual. My suggestion that only when privacy is more fully individualized can it achieve its true liberal worth for Okin might resolve some issues, but it generates others. Consider, for instance, what privacy means, and what value it could have, for children. Whatever meaning and value it has would no doubt increase as the child matures. Or it may be that Okin takes privacy to be an adult-only good. Either way, she fails to elaborate on what it means for the liberal good of privacy to become genuinely individualized within the family when most families contain children.24

6. A GENDER-FREE FUTURE?

In what has proved to be a controversial aspect of her theory of justice, Okin announces that “A just future would be one without gender. In its social structures and practices, one’s sex would have no more relevance than one’s eye color or the length of one’s toes. No assumptions would be made about ‘male’ and ‘female’ roles” (JGF: 171). The best way to read Okin’s anticipation of a gender-free society is for its contribution to the Millian good of the development of truly individual personality.25 We can discern the presence of this ideal in Okin’s suggestion that only when women “participate equally in what had been principally men’s realms of larger scale production, government, and 54

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intellectual and artistic life, will members of both sexes be able to develop a more complete human personality than has hitherto been possible” (JGF: 107). It also animates her prediction that “children of both sexes in genderfree families would have … much more opportunity for self-development free from sex-role expectations and sex-typed personalities than most do now” (JGF: 184). Unpacking this link between a gender-free future and the full development of individual personality requires, however, further reflection on what Okin means by gender. Okin’s declaration about a just future uses the terms sex and gender almost interchangeably. She implies that a genderless society is one in which the significance of sexual difference has diminished, if not disappeared. The terms gender and sex are again closely equated when she defines gender as “the deeply entrenched institutionalization of sexual difference” (JGF: 6). Yet this apparent conflation of sex and gender departs from traditional feminist use of these terms and has, perhaps for this reason, created some understandable confusion among Okin’s readers. For feminists, the terms “sex” and “sexual difference” have typically encompassed the physical or biological aspects of human life, with particular reference to the roles played by male and female in reproduction of the species. Gender has referred to a cluster of characteristics and behaviours that men and women are encouraged and trained by their society to exhibit. Spelman’s remarks are illustrative of this sort of thinking: To identify a person as a female is one thing, to identify her as a woman is another. If this weren’t true, no one could ever talk about a female having or lacking womanly qualities, or not acting the way women are supposed to act. If we did not distinguish between being a female and being a woman, it would be impossible to make the anthropological point that different societies have different constructions of womanhood for their females. Indeed, within any single society the definitions and expectations of what it means to be a woman will vary greatly. (1988: 14)26 Many feminists have complained that, for centuries, Western thought has conflated gender and sex, with sex furnishing the immutable bodily basis of gender characteristics such as passivity, submission and nurturance for women. Feminists from Wollstonecraft onwards have tried to unhook sex from gender. Questioning gender’s biological or natural bases, they have pointed out that many masculine and feminine behaviours are inculcated by society, and could therefore be altered. While most feminists accept that bodily differences cannot or need not be changed, the way they are interpreted and their supposed significance for an individual’s life can change. 55

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Those who are biologically female or male do not have to behave in traditionally feminine or masculine ways, respectively. Females could take on certain traditionally masculine aspects of gender, such as courage, confidence and assertiveness, while males could take on traditionally feminine aspects of gender, such as showing care and consideration for others. Okin echoes this standard approach when she says that “so much of what has traditionally been thought of as sexual difference is now considered by many to be largely socially produced” (JGF: 6; cf. 171; 1991c: 67, 74, 78; 2004: 1540).27 Yet defining gender as “the deeply entrenched institutionalization of sexual difference” invests the term with negative connotations. This departs from standard feminist procedure, which is to use the term more neutrally. Gender can, of course, be used in a critical fashion, but it is not an intrinsically negative term. Given Okin’s negative definition of gender, it follows that, in talking about its elimination, she means that social structures, practices and understandings should be reformed so that women are free to engage in traditionally masculine areas such as politics and the formal economy just as men become able to participate in traditionally feminine areas such as childcare and domestic labour. Many feminists share this ambition, but most do not describe it as the disappearance, abolition, or minimization of gender as Okin repeatedly does (JGF: 12, 72, 104–5, 116, 178–9, 183–4; 1989b: 229; 1989c: 39; 1991c: 67; 1992a: 383 n.64; 1995c: 120; 1996: 30; 1998a: 142 n.67; 2004: 1539). Baehr also finds two notions of gender in Okin’s work, akin to what I am calling negative and neutral. Baehr describes what I call the more neutral sense as “the psychosexual component of identity” (1996: 55) and points out that it is unclear how a more gender-just society (i.e. one without gender in the negative sense) would affect individual identity and personality. Gender differences of the psychosexual sort need not be unjust and so need not be minimized or eradicated: indeed, they might contribute to liberal diversity and free expression of individual personality. Okin’s above analogy between gender and eye-colour supports this interpretation: we do not live in a society where everyone has the same colour eyes, or no colour eyes: it is just that eye colour has no significance when it comes to the distribution of rights, responsibilities and opportunities. Comparing gender in the future to eye colour now suggests not that gender must disappear, but that it must lose its social salience. But there is no reason why gender could not retain some personal significance for some or many individuals. It would have behoved Okin to elaborate on what she means by the ideal of a genderless future, for even sympathetic interpreters express doubts about this. For J. S. Russell (1995), the idea of a genderless future seems a thought too far: it would be possible to accept Okin’s policy proposals without agreeing that the future should be gender-free. But Russell is using gender in the 56

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more standard, neutral feminist sense and not in Okin’s negative sense of “deeply entrenched institutionalization of sexual difference”, because accepting Okin’s policy proposals would remove such institutionalization. Stephen Macedo, also using a more neutral meaning of gender, wonders “whether a society without gender is the best way of formulating our goal. Might justice allow a future in which there are identifiable differences between women and men and yet those differences are equally respected?” (1992: 524). Nussbaum chides Okin for making simplistic statements about a topic as “deeply ambiguous and mysterious” as gender. Because “the sense of being male or female is so strong in most of us” (Nussbaum 1992a: 46), claims about ending gender need to be grounded in a much deeper account of human identity and desire.28 Okin later attempted some clarification of her meaning, confirming that those in a gender-free society “would vary in innumerable respects, including those we now associate with masculinity and femininity” (1996: 32). I take this to mean that those features would not disappear but nor would they be automatically expected, rewarded or penalized on the basis of a person’s sex.29 Okin adds that a person’s sex can also continue to feature heavily in sexual attraction (ibid.: 46 n.2). She also took the opportunity to reply to the charge of heteronormativity in JGF by pointing out that a society in which gender carried less social salience would be more hospitable to gay, lesbian, transgendered and transsexual people. Associating rigid sex distinctions with hostility to homosexuality, Okin predicts that if social expectations regarding masculinity and femininity relaxed, heterosexuals should become more tolerant of same-sex relationships and of different configurations of gender to sex (ibid.: 30–33, 42; cf. 1997: 21). In WWPT Okin observed that neither Plato nor Mill thought they could know whether and how women’s natures really differed from men’s. As noted above, Okin echoes their uncertainty on the grounds that any such knowledge could become available only when “members of the two sexes are enabled to develop in the absence of differential treatment during the socialization process and throughout their lives” (WWPT: 297). Three years after JGF’s publication, she returns to this idea, advocating: the agnosticism professed by John Stuart Mill about the “natures” of men and women. We still have no idea of what would be the differences between the sexes in a society where they were equal, and where a person’s sex was not regarded as a characteristic of major social and political salience. (1992a: 316; cf. 1998a: 121) Okin predicts that “what are now considered masculine and feminine characteristics and values would be spread out among the members of both 57

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sexes”, labelling this approach androgynist (1992a: 317; cf. 1998a: 121). Thus only when men and women engage in the same activities across all areas of life will we be in any position to begin to see what, if any, the influence of sex on individual personality might be. Some of Okin’s readers impute this Millian agnosticism to her (Satz & Reich 2009b: 7; Rosenblum 2009: 30–31; Shanley 2009: 115, 126–7). However, in this same work, where Okin admits that “we still have no idea of what would be the differences between the sexes in a society where they were equal”, she describes herself as advocating “the elimination of gender” (1992a: 334; cf. 381 n.35; 1998a: 132, 141 n.37). It is hard to reconcile the uncertainty of agnosticism with terms such as “disappearance” and the stronger “elimination” to characterize gender’s future. A truly agnostic stance should make it inappropriate for Okin to prognosticate about the end of gender in the neutral sense. (A gender-just society would, by definition, be free of gender in Okin’s negative sense.) A less troublesome alternative might have been to substitute “humanist” for “genderless”, for Okin sometimes uses the term humanist to characterize a theory or society that is not gender-structured (JGF: 170–86; 1989c).30 However Okin describes it, one of her reasons for seeking to diminish the institutionalization of sexual difference is “to enable persons of both sexes to be as free as possible to develop their own characteristics and ways of thinking” (1992a: 335; cf. 1998a: 133). This returns us to the liberal value of the free development of individual personality. The current de facto (and once de jure) segregation of activity by sex is held to stultify or suppress the expression or development of certain aspects of an individual’s personality. Okin’s aforementioned requirement of equal outcomes between men and women across the spectrum of human practice will expose individuals of both sexes to activities that in a gender-structured society tend to be dominated by one sex. This might enable individuals of both sexes to discover or acquire talents, characteristics and capacities previously unknown to them. When men and women participate in the same array of activities, Okin’s assumption seems to be that individuals will develop more varied and rounded personalities than they can do in a gender-structured society. However, it is only once the required threshold of equal outcomes has been satisfied that individuals become free to spin off in their own directions, which places significant prior constraints on the individual’s ability to freely develop his or her own personality. Just as the freedom to choose a gender-structured household has to be constrained by the requirements of justice, so the precondition for the full development of individuality seems to be that everyone performs an equal share of domestic labour. But it is possible that, with time, Okin’s requirement of equal outcomes in the domestic sphere could be dropped; in a society as heavily structured by sex as most current liberal societies are, equal outcomes are needed to break the hold 58

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of centuries of men and women carrying out different tasks. If this pattern were to be broken, and generations of children grew up witnessing men and women doing a range of things, the conditions for genuine equality of opportunity might obtain and individuals would be able to freely choose activities and occupations ab initio. Thus the least liberal aspect of Okin’s programme – its insistence on equal outcomes – appears to be a transition phase on the way to a society with equal opportunity and pluralism for all individuals, irrespective of sex.31 Underlying Okin’s desideratum of gender-equal outcomes across the gamut of human activities is the belief that all (or most) humans have the capacity to engage effectively in a range of diverse activities, from childcare to political leadership. In this she seems to have been influenced by Mill, but possibly also by the early Marx. Although Okin says little about Marx in WWPT and less in JGF (JGF: 140), she did have some familiarity with his writing.32 In the Economic and Philosophical Manuscripts of 1844, Marx argued that by confining working individuals to a single activity, the division of labour under capitalism stymied the development of the wide range of creative tasks that, as humans, they were ontologically equipped to perform. Industrial capitalism, with its ever stricter division of labour, prevented humans from realizing their species distinction, forcing them to work in a highly constrained and limited way. Communism would, the young Marx hoped, free people to work in a manner more in accordance with their wide-ranging ontological potential. Although she does not make this explicit, Okin can be seen as applying this thinking to sex and gender. All individuals start with the potential to pursue some variety of activities. When society shunts them into particular activities on the basis of sex, they fail to develop this. Once a wider range of activities is opened up to (or required of ) them, this potential, which does not seem to ever be expunged, only suppressed, can realize itself and humans can develop in a more fully rounded way. The resonances with early Marx are audible in Okin’s claim in WWPT that: Men and women, individually and in their relationships with each other, have the potential for becoming more and more specifically human and differentiated from the other animals, and, to a large extent, it is by being freed from the constraints of necessity imposed upon them by nature that humans can achieve the fullness of their human potentiality. (WWPT: 298, emphasis added) The focus of Okin’s feminist critique is the constraints on men and women that are imposed by society, often in the name of nature or necessity. Only when such constraints are lifted can individuals achieve their full potential.33 59

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Whether its source is Marx or Mill (both of whom were influenced in turn by the German Romantics), a latent perfectionism underpins Okin’s ideal of the genderless society, based as it is on this idea that each individual should realize his or her intrinsic human potential to engage in a diversity of activities rather than being confined to one set of activities on the basis of sex. This reading is directly at odds with Rosenblum’s, which finds “no hint” in Okin’s work of “Mill’s perfectionism or eudaimonism” (2009: 36). Rosenblum also contends that Okin’s feminism was devoid of ideals of friendship or family (ibid.: 36–8). If, as one of her remarks suggests, she is referring here to Okin’s enthusiasm for multiple family forms (ibid.: 36), this is correct. And this enthusiasm is, as I have argued, the fruit of her belief in free individual choice applied to intimate association. But to say that Okin had no ideals for family life in general is incompatible with her continuing attempts to promote justice in the family, whatever form the family takes. The ideal of a more just family informs all of Okin’s work. As Rosenblum reads Okin more generally, “her humanist compass was oriented toward the known evil of subjection and vulnerability, with its allusion to fear and physical insecurity” (ibid.: 38).34 In support of her anti-perfectionist reading, Rosenblum concludes that Okin’s “prescriptions were corrective, modestly improving, tolerant not perfecting” (ibid.: 36–7). But this is hard to reconcile with Rosenblum’s simultaneous insistence on the radical character of Okin’s liberalism (ibid.: 15; cf. 16, passim.). How can a position with “corrective, modestly improving [and] tolerant” ambitions also be radical? One corollary of the latent perfectionism I discern in Okin’s thought would be that those who, in a gender-just society, choose a gender-structured household and lifestyle are failing to realize their full human potential. Yet in the interests of her liberal regard for free individual choice and privacy, Okin would have to accept this “suboptimal” outcome. As this also intimates, to identify a latent perfectionism in Okin’s feminist liberalism is not to say that she wants the state to enforce this ideal by compelling people to realize their human potential. This question of the ends for which Okin would use the state is taken up again in Chapter 14. For now, however, attention turns to her role as the most famous feminist legatee and critic of Rawls.

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4. HE SAID, SHE SAID: THE OKIN–RAWLS DEBATE

Susan Okin’s important critique led both the prosecution and the defense. (Nussbaum 2003c: 501) One of the ways in which Okin’s liberalism becomes more explicit in JGF is via her endorsement of the Rawlsian theory of justice. This chapter maps the main contours of the exchange between Okin and Rawls initiated by JGF. It begins by outlining Okin’s critical but ultimately enthusiastic reception of Rawls’s first major work, TJ. It moves on to her less enthusiastic reaction to its successor, PL. In writings published after PL, Rawls spells out for the first time how justice as fairness deals with questions of women and the family in a way that, it shall be argued, ultimately vindicates Okin’s original assessment of the feminist potential of his liberalism.

1. A RAWLSIAN THEORY OF JUSTICE

As we saw in the previous chapter, JGF deems the major contemporary theorists of justice to offer little to those concerned with the situation of women in liberal societies. However, of those Okin surveys, Rawls’s theory of justice as fairness emerges as the most promising. Yet while her reservations about the value of Rawls’s thought for her feminist purposes are ultimately outweighed by its positive potential, those reservations are not minor. Okin’s first complaint is that Rawls neglects gender as a source of injustice: TJ gives no indication that “modern liberal society … is deeply and pervasively gender-structured” (JGF: 89; cf. 91). Given that Rawls is doing ideal theory, this failure might not in itself be objectionable, except that he does observe that religious intolerance and racial discrimination have no place in a just society (TJ: 19–20). These remarks on non-ideal conditions render his silence on gender inequalities more ominous. Rawls’s neglect of gender is 61

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also evident in the fact that in its first formulations, he did not stipulate that parties in the OP would be ignorant of their gender (JGF: 91). This suggests not that knowing one’s gender is compatible with the sort of disinterested thinking that goes on behind the veil of ignorance but rather that these issues are so far off Rawls’s radar that he does not even think to include gender as a facet of identity that could influence one’s thinking about justice. Rawls did add gender to the list of informational restrictions on parties in the OP (PL: 25), vindicating Okin’s view that those behind the veil of ignorance should be ignorant of this (cf. Nussbaum 1999f: 26). Okin applauds Rawls for including the family in his theory of justice. However, he fails to develop this promising beginning into any reflection on what justice within the family requires. By simply assuming the family to be just, he prematurely and illegitimately forecloses a crucial area of normative enquiry (JGF: 22, 94, 97, 108). As Jane English had pointed out, in his discussion of the just savings principle Rawls depicts the contractors not as individuals but as heads of families. A fairly conventional view of the family seems to have been smuggled into his theory, which has the effect not just of gendering the contractors in the OP as masculine (JGF: 92, 96) but also of rendering “the family opaque to claims of justice” (English, cited in JGF: 94; cf. 95). Yet notwithstanding these significant shortcomings, Okin finds considerable promise in the Rawlsian way of thinking about justice and tries to exploit its potential in ways that he had not (JGF: 90). In her assessment, the four most encouraging aspects of Rawls’s thought for feminist purposes are: (i) the location of the family in the basic structure; (ii) the device of the OP; (iii) the conception of justice as requiring both reason and emotion; and (iv) the depiction of the family as a major school of citizens’ moral development.

The family and the basic structure

The “basic structure” is the subject of Rawls’s theory of justice: it is the basic structure to which principles of justice apply. This coinage refers to “the way in which the major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation” (TJ: 7). Rawls’s list of examples of major social institutions comprises “the legal protection of freedom of thought and liberty of conscience, competitive markets, private property in the means of production, and the monogamous family” (ibid.). Okin responds enthusiastically to this explicit inclusion of the family in the basic structure, for it shows that at last a mainstream political theorist is following Mill by suggesting that the family could be examined and criticized in light of the demands of justice. Including the family among the basic 62

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structure’s institutions also confounds the traditional liberal reading of the public–private distinction, for this theory of justice applies to public institutions and to the family, which, as we have seen, has traditionally been deemed to be private (JGF: 93, 96–7). To formulate principles of justice that apply to the basic structure, the contractors assume the veil of ignorance in the OP. According to Okin, this should require them to consider what sort of family life is most compatible with a just society. If those in the OP do not know their gender, and are formulating principles of justice relevant to the family, they will construct a position that treats men and women fairly and in which no one is disadvantaged on the basis of gender (JGF: 101, 105). She is adamant that parties in the OP would never choose the sort of gender-structured arrangements that characterize current liberal societies. Okin concludes, more generally, that “Rawls’s principles of justice … would seem to require a radical rethinking not only of the division of labor within families but also of all the nonfamily institutions that assume it” (JGF: 104). Indeed, in presenting her own policy proposals for making society more just, she frames the exercise in Rawlsian terms: “Let us begin by asking what kind of arrangements persons in a Rawlsian original position would agree to regarding marriage, parental and other domestic responsibilities, and divorce” (JGF: 174; cf. 182).1 So in Okin’s estimation, Rawls supplies some tools for a feminist theory of justice, but does not deploy them for this purpose. He fails, for example, to extend “the principles of justice to the realm of human nurturance” (JGF: 108). He applies these principles directly to other institutions in the basic structure but not to the family (JGF: 93; cf. 2004: 1550; 2005a: 235). Okin also talks about the difference principle and some of the essential liberties in the first principle applying directly to the family (JGF: 103), in a way that Rawls does not. There is, however, some controversy regarding the idea typically imputed to Okin, that is, that including the family among the institutions of the basic structure requires Rawls to apply the two principles of justice directly to it. A number of interpreters have questioned whether this is the correct way to understand the relation between the principles of justice and the basic structure. They argue that the two principles are not designed to apply to each and every institution within the basic structure seriatim, but rather to the operations of the system as a whole, to the outcomes of the interactions among its constituent institutions. What matters is that the operations of the institutions that the basic structure comprises, when taken together, conform to the two principles of justice (Lloyd 1994: 358–9; 1995: 1327; Baehr 1996: 49–52; Nussbaum 2000a: 60; Wijze 2000: 274; Levey 2005: 142 n.10). Four possible replies are available to this charge that Okin has fundamentally misunderstood the way in which Rawls’s principles of justice relate to 63

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the basic structure. First, Okin frequently argues that in order for the feminist potential of justice as fairness to be realized, it is necessary to follow the spirit, rather than the letter, of Rawlsian law, so even if it could be shown that applying the two principles directly to each constituent of the basic structure was not Rawls’s intention, there is no bar on Okin developing his work in this way. Second, while there are some textual bases for her critics’ reading, Okin herself does not always hold to the view that the two principles must apply directly to the household. She quotes the position that she is supposed to violate – that is, that “taken together as one scheme [the institutions of the basic structure] … define men’s rights and duties and influence their life prospects” (TJ: 7, quoted in JGF: 92, emphasis added) – which indicates that she is not oblivious to this aspect of Rawls’s theory. Many of her formulations on the relation between the family and the two principles of justice are, moreover, looser than her critics suggest. She writes, for example, that in a gender-just society, the family must “be constructed in accordance with the two principles of justice” (JGF: 97, emphasis added). This does not require direct application of the principles to the family; nor does it seem problematic to say that all the institutions in the basic structure should be so constructed. Later she insists that “the family and the gender system, as basic social institutions, are to be subject to scrutiny” (JGF: 101) from the standpoint of justice as fairness, which is not the same as saying that the two principles must be applied directly to them. Baehr (1996: 60) points out, moreover, that rather than apply the difference principle to the family, Okin works with a flat principle of equality so that burdens and benefits are distributed equally between its adult members. Thus Okin’s comments on justice within families do not always suggest that she wants to see Rawlsian principles applied directly to the household. In her later writings Okin does, however, appear to disregard the idea that the basic structure is a system whose component parts interact to generate a just society and to become more insistent about the principles applying directly to the family (2004: 1540–41, 1553, 1563–7; 2005a: 240, 245–6). Thus, even if Okin did not adhere consistently to the position her critics impute to her, she seems to have eventually settled on it as the most useful way to read Rawls for feminist purposes. In light of this, a third possible response to the charge that Okin has misunderstood Rawls’s view about how the principles of justice govern the institutions of the basic structure is to contend that, notwithstanding her own claims, applying the principles directly to the family is not in fact essential to meeting Okin’s demand that the family be considered in terms of justice. If the correct reading of the relation between the basic structure and the principles of justice is that the latter regulate the outcome of the interactions of the former’s component institutions, then Rawls’s conclusion about them not applying directly to the family need not dash her feminist hopes for the 64

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justice or otherwise of the family to be considered by liberal thought. Thus Okin need not be irrevocably wedded to the idea that the two principles apply directly to the household and could accept her critics’ point that the two principles are meant to apply to the outcomes of the basic structure as a whole. This leads to Okin’s fourth possible reply, which is to ask, if the principles of justice apply only to the interactions and outcomes of the constituent institutions, how could the injustices of the family be compensated for by other institutions within the basic structure? This question becomes more challenging given her belief that women’s unpaid work in the household has directly affected the low valuation of their work in the paid economy. Women’s position within the family has also shaped the assumption that female workers will not be heads of households but will have access to a male worker’s wage, which has served to justify lower wages for women. As we saw in Chapter 2, Okin believes that in these and other ways, injustices in the household spill over to other institutions of the basic structure (and beyond). Given this, it is hard to know how other institutions within that structure could remedy this. So even if Okin is erring from Rawls’s original intention in claiming, as she sometimes does, that the two principles apply directly to the family, her perspective on the unequal distribution of domestic labour poses a powerful challenge for the justice of the basic structure that remains to be answered. Ultimately, however, it seems that her central point is that the gender-structured family is both site and source of injustice, and this needs to be recognized by a theory of justice that includes women. Applying the two principles to the family should be a negotiable aspect of Okin’s theory of justice whereas attending to and trying to rectify family injustice is not.

The original position

In the OP Okin finds a mechanism for reflecting on, and rejecting as unjust, many of the ways in which women are treated in liberal societies. One of its other attractions is that it encourages those thinking about justice to imagine the situation of others. If I do not know my race, class, gender or conception of the good, I have to try to imagine what it would be like to be someone different from me, and to think about what sort of society would be just for that person. As Okin interprets it, those in the OP must “think from the perspective of everybody, in the sense of each in turn. To do this requires, at the very least, both strong empathy and a preparedness to listen carefully to the very different points of view of others” (JGF: 101). Rapport (1991) and Russell (1995) take Okin to mean that the OP requires a genderless perspective, leading Rapport to charge Okin with failing to address the dilemma of difference and Russell to conclude that her Rawlsian 65

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framework is inadequate to her feminist purposes.2 However, once again a close reading of Okin’s writing reveals ambiguity about this. While there is some textual support for Rapport’s and Russell’s inferences that the OP requires a genderless perspective (JGF: 107), Okin also says that when thinking about principles of justice, we should try to imagine what it would be like to be a woman or a man and ask what arrangements would be acceptable. She issues an invitation to: try to imagine ourselves, as far as possible, in the original position, knowing neither what our sex nor any other of our personal characteristics will be once the veil of ignorance is lifted … We may, once the veil of ignorance is lifted, find ourselves feminist men or feminist women … or we may find ourselves traditionalist men or women. (JGF: 174) This does not necessarily require a genderless perspective; rather, we must imagine what it would be like to be this sort of man or woman and then that sort of man or woman. In a paper published in the same year as JGF, Okin says that those in the OP have to imagine that they could be “the least advantaged representative woman” (1989b: 245), which is further evidence that gendered perspectives are not expunged from the sort of thinking that occurs there. Okin also makes a comparison with the approach to religion. In the OP we have to imagine what it would be like to be a religious person and a non-religious person, and construct principles of justice acceptable to either (ibid.). (Of course, along with differences between these positions, there is great internal variation within each, which simply multiplies the imaginative challenge.) So just as the possibility of having a religion is not ruled out by the sort of thinking needed in the OP, so the possibility of having a gender need not be. We just do not know which religion (if any) nor what gender we will have.3 As Okin freely acknowledges, striving to think beyond one’s gender to that of another is very demanding: “All of us have been affected, in our very psychological structures, by the fact of gender in our personal pasts” (JGF: 171; cf. 174 n.). She would probably concede that imagining the standpoint of another gender is easier for women than for men. Women are supposed to have greater capacities for empathy, which Okin attributes to their disproportionate role in society’s caring work. And men have for so long dominated cultural production that women are used to seeing the world depicted from a masculine point of view. She claims, after all, that “the ideology that is embodied in ‘malestream thought’ is undoubtedly one of the most allencompassing and pervasive ideologies in history” (JGF: 66). But given her acknowledgement of the challenge of imagining things from the standpoint 66

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of another gender, any requirement to think in a gender-free way in the OP would seem too exiguous at this stage.

A sense of justice

As Okin reads Rawls, the emotional intelligence needed in the OP includes a capacity for empathy, for imagination, for thinking about difference, an ability to consider others as one’s moral equals, as well as show care and concern for them (1989b: 244–5, 248). She sees Rawls as contending that the capacity for justice requires a fusion of feelings and reason (JGF: 98, 186) and takes him to hold that “feelings such as care and concern for others are essential to the formulation of principles of justice” (1989b: 247; cf. 2004: 1545–6). Okin admits that this dimension of Rawls’s theory can be obscured by Rawls himself (Okin 2004: 1540–41, 1553, 1563–7; 2005a: 240, 245–6), when he aligns his approach with rational choice theory. She also attributes this obscuring of the affective ingredients of justice to his Kantian heritage because, for Kant, feelings and emotions could, officially at least, play no part in truly moral thinking (1989b: 231–5, 240). Kant consigned these things to women, believing, along with many canonical Western thinkers, them to be incapable of the moral heights that (some) men could attain (ibid.: 234). So Okin understands why some interpreters see Rawlsian thinking about justice as presupposing “the view from nowhere” and as abstemiously abstract and rationalist. In construing the Rawlsian capacity for justice as striving for impartiality by practising empathy, Okin admits that she is interpreting Rawls untypically, but she also thinks that she is offering not an adaptation or extension of his principles but their more faithful interpretation. Okin’s conviction that at the heart of Rawlsian thinking about the capacity for justice “is a voice of responsibility, care and concern for others” (ibid.: 230; cf. 236–8, 245) enables her to intervene in the ethic of care debate. Fearing that it has overdrawn the distinction between justice and care, she proposes that the best thinking about justice combines both. Such thinking: has integral to it notions of care and empathy, of thinking of the interests and well-being of others who may be very different from ourselves … The best theorizing about justice is not some abstract “view from nowhere” but results from the carefully attentive consideration of everyone’s point of view. (JGF: 15; cf. 1989b: 244, 247)4 Okin does, however, concede that Rawlsian thought could learn something from the ethic of care, for if it drew more on the experiences of women, 67

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“the discussion of rational plans of life and primary goods might be focused more on relationships and less exclusively on the complex activities that he values most highly” (JGF: 107).5 Shortly after JGF, Okin provided a detailed engagement with Gilligan’s position, concluding that: “Women and men may well think about moral issues in different ways … [but] further research that overcomes some of the faults of previous methodology needs to be done … It is still not clear what ‘thinking like a woman’ really means” (1990a: 159). This is, of course, part and parcel of what the previous chapter described as her Millian agnosticism about gender (Chapter 3, §6). Until men and women are treated equally, we cannot know what, if any, characteristics might be linked to biological differences. Elsewhere Okin rejects the idea that women’s capacity for empathy is innate: both sexes begin with this capacity but women are encouraged to develop theirs more than men are (Okin & Reich 1999).

Home schooling

The final feature of Rawlsian thought that Okin admires is his awareness of the family as the first school of moral development: Rawls recognizes, officially at least, the central role the family plays in producing and reproducing a just society (JGF: 21, 97–9). This renders his failure to scrutinize the justice of the family even more culpable in Okin’s eyes, because if families are not just in their dynamics they cannot properly prepare children to become just citizens. Okin tries to correct for this by emphasizing the feeling of empathy that children develop in the family (Chapter 2, §4). However, her presentation of Rawls’s thinking on this topic reduces the relevance of what he calls “the morality of association” for it is here, more so than in the family, that children begin to develop their sense of empathy. In order to see this more fully, it is necessary to examine what Rawls says about the family’s contribution to the stability of the well-ordered society (TJ: pt iii, ch. 8). In order for such a society to be stable and to endure over time, its members have to affirm its principles of justice freely and come to identify with, and internalize, them. This occurs at the stage Rawls calls “the morality of principles”. However, that stage is preceded by two others: “the morality of authority” and “the morality of association” (TJ: 461). Okin is correct that Rawls sees this as a step-wise process; people proceed from one stage to the next, acquiring different dimensions of a sense of justice as they mature. And Rawls does assign the family a key role in the first stage of the development of a sense of justice: the morality of authority stage. Here children do what they are told because their parents are authority figures but, in a just family, their obedience is based on love rather than fear. Learning that their parents love 68

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them, children come to return that love. They admire and want to emulate their parents. Parents model just behaviour and articulate, at a level the child can understand, the moral standards underpinning their actions and decisions (TJ: 466). In the development of a sense of justice, the family’s central role comes in giving the child an appreciation of his or her own worth as a person (TJ: 464). In contrast to Okin, Rawls does not stress the capacity for empathy being fostered in the family. When still embedded in the family and its morality of authority: the child has not yet mastered the art of perceiving the person of others … his ability to put himself in their place is still untutored … these elements, so important from the final moral point of view, are left out of account at the earliest stage. But this lack is gradually overcome as we assume a succession of more demanding roles with their more complex schemes of rights and duties. (TJ: 469) Fostering a sense of empathy comes in the next stage, with the morality of association. This stage builds on the first but contributes something qualitatively new to the acquisition of a sense of justice. In Rawls’s doctrine, the power to empathize with others comes from exposure to the wider world through associations such as schools, neighbourhoods, sports and other clubs, and other groups. In outlining the distinctive moral learning that goes on in this second stage, the power to see things from another’s point of view becomes crucial: “[W]e must recognize that these different points of view exist, that the perspectives of others are not the same as ours. But we must not only learn that things look different to them, but that they have different wants and ends, and different plans and motives” (TJ: 468–9). Three important points follow from this brief recapitulation of Rawls’s position. First, Okin’s account of the development of empathy with difference beginning in the family is not Rawls’s. While she recognizes the moralities of authority and association as different stages in the Rawlsian schema, she conflates their function and does not draw out the distinctive contribution of the second stage (JGF: 98; 1994a: 33). This is not necessarily problematic, as she is fully entitled to deviate from Rawls’s account while still taking inspiration from it, as she does with other aspects of his work. However, in this instance she does not signal her departure. Moreover, Rawls’s separation of the stages makes more intuitive sense than does Okin’s conflation of them: as children develop a wider network of associations and experiences their fodder for diversity, as it were, increases, and it is at this stage, rather than the more homogenous stage of the family, that children are likely to begin to confront the challenge of coming to terms with difference. 69

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Second, although Rawls’s three stages proceed in a step-wise fashion with each supplying something distinctive to the final product of a sense of justice, it is conceivable that something missed in one stage could be compensated for in a later one. Children who do not grow up in a loving family might not inherit a sense of their own worth from that family, but they might get this, or some sense of it, from participation in an association outside the family. Indeed, it is not unknown for children from emotionally troubled households to be imbued with a sense of their own value by a teacher or some other nonfamily mentor. Thus the existence of just institutions outside the family could compensate for some of the self-esteem that an unjust or unloving family might fail to engender. Neglecting Rawls’s distinction between these two stages of moral development, Okin’s narrative offers children little chance to pick up the elements needed for a sense of justice or self-worth outside the family. She would agree with Rawls about the need for schools to educate children in civic principles and their rights and entitlements as citizens, but adds lessons in the principles of gender equality and the realities of gender inequality to the curriculum (JGF: 177). But she would be the first to concede that learning these more formal lessons in justice needed for one’s role as a citizen is not the same as acquiring a capacity for empathy or a sense of one’s own intrinsic value as a person.6 Third, Rawls’s position on the family as a school of moral development avoids one of the problems for single-parent and same-sex-parent households created by Okin’s, for children from such families branch out into a wider world in similar ways and at the same age as children from heterosexual families. They get the same exposure to diversity and have the same opportunity to develop empathy as those children do. Had she cleaved more closely to Rawls’s depiction of the child’s development of a sense of justice, Okin could have avoided one of the problems plaguing her own position on “home schooling” (Chapter 2, §4). Okin is largely correct that when outlining this process of moral development, Rawls (TJ: 463) proceeds on the questionable assumption that the family is just. However, he does this with each stage of moral development, not just the family. He posits just institutions all the way along the chain for the sake of outlining his ideal scenario, holding the justice of the institutions steady so that he can focus on how citizens acquire their sense of justice. This choice derives from the overall impetus for his discussion, which is to explain how the well-ordered society is stable and self-reproducing (TJ: 453– 4). In grappling with this question of the just society’s self-perpetuation, it seems reasonable to assume that the key institutions are just. So while Okin is largely correct that Rawls assumes the family to be just, his reasons are understandable and he does not single out the family for special attention (or inattention) here. 70

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But Okin is only largely, not wholly, correct about Rawls assuming the justice of the family, for there are two moments where he concedes that the family might not be just. The penultimate paragraph of his account of the morality of authority admits: “In the absence of affection, example, and guidance, none of these processes can take place, and certainly not in loveless relationships disrupted by punitive threats and reprisals” (TJ: 466). He also raises the spectre of an unjust family in recounting Freud’s view of personality development. Being treated unjustly, the child will emerge from such a family with a skewed sense of justice (TJ: 459). Of course Rawls is here describing, without necessarily endorsing, Freud’s position, but having outlined this and a second view of moral learning he finds “much that is sound in both” (TJ: 461). At this point it is helpful to consider an aspect of the feminist critique of the OP that has been levelled at both Rawls and Okin by Seyla Benhabib. Benhabib argues that adopting the veil of ignorance allows contractors to imagine only generalized, not concrete, others and that this fails to provide a robust or reliable basis for a universal ethic of respect that also acknowledges difference. In her estimation, “There is no moral injunction in the Original Position to face the ‘otherness of the other’ … their ‘alterity’, their irreducible distinctness and difference from the self ” (1992: 167; cf. 159–64). Benhabib concedes that Okin’s variation (or elaboration) on the Rawlsian position comes closer to recognizing concrete otherness, but warns that Okin’s reliance on empathy for imagined others is dangerous if such empathy is based on a projection of our own feelings. However well intentioned, extrapolating from ourselves about how others feel can be riddled with falsehoods, fantasies, misunderstandings and prejudices. The only way of really knowing what concrete others want and need is by listening carefully when they speak for and of themselves: “The viewpoint of the concrete other emerges as a distinct one only as a result of self-definition. It is the other who makes us aware both of her concreteness and her otherness” (ibid.: 168; cf. 167). One aspect of Rawlsian and Okinian thinking about the OP that Benhabib’s critique overlooks is that the capacity for empathy is based on and developed through engagement with concrete others. The thought experiment conducted in the OP should not be presented in isolation from the emphasis both give to learning about difference through interaction with others who are different. As the person develops a sense of justice, he or she learns about others through direct contact and conversation with them, thus mitigating the danger of misunderstanding and misrepresentation. For Okin in JGF the family is a crucial vehicle for this; for Rawls in TJ it occurs through association with those outside the family. Either way, the capacity for empathy is learned through actual engagement with concrete others. Thus for Okin, as we have seen, to “think from the perspective of everybody, 71

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in the sense of each in turn … requires, at the very least, both strong empathy and a preparedness to listen carefully to the very different points of view of others” (JGF: 101, last emphasis added). This connection between empathy and knowledge of concrete others appears in a passage by Okin that Benhabib cites: “If we … are to think as if we were in the original position, we must develop considerable capacities for empathy and powers of communicating with others about what different human lives are like” (Okin 1989b: 246, cited in Benhabib 1992: 165; cf. McClain 1991–92: 1208). And it is unlikely that either Rawls or Okin would hold that acquiring a capacity for empathy can ever be complete; it would seem, rather, to start in childhood but go on developing and changing as one is exposed to more and different others. Thus Benhabib’s critique of Okin and Rawls on this score seems to be based on a tendency to segregate a capacity for empathy from an engagement with actual others, which neither of them actually exhibits.

Summary

Ultimately, Okin endorses the value of Rawls’s thought in TJ for feminist purposes with some reservations. However, to understand her overall enthusiasm for the Rawlsian project, it is necessary to appreciate that her assessment is not just a matter of comparing two sides of the ledger: weighing up the pluses and minuses of Rawls for feminism. Rather, the “pro” side of Rawls’s ideas has the ability to cancel out the “con” side, for all the weaknesses of Rawls’s position from a feminist perspective disappear when its strengths are consistently applied. Okin should be understood as performing an immanent critique: showing the ways in which Rawls’s position falls short of its own standards and fails to deliver on its own promises. Hence her conclusion that “a consistent and wholehearted application of Rawls’s liberal principles of justice can lead us to challenge fundamentally the gender system of our society” (JGF: 89). With this ultimately positive assessment, Okin became Rawls’s preeminent feminist interlocutor (cf. Baehr 1996: 49; Smith 2004: 59; Tubbs 2007: 48),7 and solidified her standing as a leading feminist liberal (cf. Russell 1995: 397; Squires 1999: 47; Berkowitz 1999; Baehr 2002: 151).

2. POLITICAL LIBERALISM

Chapter 3 argued that Okin’s extension of liberal values to women starts from within a certain political tradition, making her way of validating liberalism closer to Rawls’s in PL than in TJ. This is not to suggest, however, that the content of PL comes closer to Okin’s concerns than did that of TJ: 72

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quite the contrary. In PL, Rawls engaged with a large number of critiques of, and responses to, TJ. However, one striking omission – striking to feminist readers, at least – was his complete failure to mention, let alone respond to, Okin’s work.8 Rawls may have had Okin in mind when he admits that a major issue not addressed in his previous work was “the justice of and in the family”. TJ was charged with employing an “unworkable distinction between the public and the private that renders it unable to deal with the problems of gender and the family” (PL: xxxi). He replies that “the alleged difficulties in discussing problems of gender and the family can be overcome”, but, without demonstrating this in any detail, places his faith in the principle of equality from the Declaration of Independence. That which Abraham Lincoln invoked to condemn slavery can, Rawls asserts, be extended to “the inequality and oppression of women” (ibid.). Feminist responses to TJ are acknowledged in a cursory manner and just as summarily dispatched. Okin came away from TJ with “mixed conclusions about the potential usefulness of Rawls’s theory of justice from a feminist viewpoint” (JGF: 108). She believed, however, that its weaknesses could be overcome by a more consistent application of its strengths. PL also provoked an ambivalent response; this work “continues to give us mixed signals about Rawls’s views on the application of his principles of justice to issues of gender” (1994a: 23). But the grounds for Okin’s ambivalence about PL differ from those for TJ and her overall assessment is not positive. On the plus side is Rawls’s belief that his principles of justice would cover questions of gender equality. Yet this remains underdeveloped, and Okin seeks clarification as to whether he is offering women merely formal, or more substantive, equality (1994a: 25, 39– 41). She hopes for the latter but this remains an open question. Outweighing this positive feature are three main areas of concern. One of the things attracting Okin to TJ was that placing the family in the basic structure transcended any rigid public–private divide. This promise appears to have dissolved in PL, with the family being consigned to the private realm. Standards of justice no longer seem applicable to it. Unlike the political, “the personal and the familial … are affectional” (PL: 137, quoted in Okin 1994a: 26), and Okin concludes that “the distinction Rawls draws between the political and the nonpolitical coincides with his distinction between public and nonpublic” (1994a: 27; cf. 34; 2004: 1556). Whereas Okin complained that TJ assumed that the family was just without scrutinizing this, she wonders whether PL retains any concern with family justice at all (1994a: 23, 26). This leads to Okin’s second concern with PL for feminist purposes, for she points to the reduced attention it accords to the family’s contribution to the just society (ibid.: 26). There is no comparable discussion of the family’s role as a school of moral development (ibid.: 33–4). Okin does allow that this element of Rawls’s theory could be supposed to simply carry 73

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over, unchanged, from TJ to PL, but this is speculation: Rawls gives no clear guidance on this.9 The third area of Okin’s concern relates to PL’s ambition to provide a purely political, as opposed to a comprehensive, form of liberalism (ibid.: 27). This is, in turn, connected to Rawls’s greater attention to pluralism in a liberal society, and his desire to make justice as fairness applicable and appealing to people with a wide variety of worldviews and moral positions (ibid.: 28). Rawls thinks that all his theory of justice needs is an overlapping consensus on the principles of right, leaving individuals free to live according to their own values in other areas, assuming that these positions are reasonable (ibid.: 30). Much hinges, therefore, on what counts as reasonable, and Okin fears that Rawls is willing to accommodate sexist doctrines under its rubric. She suspects that he is more tolerant of sexist comprehensive doctrines than he would be of those discriminating among individuals on the basis of race or ethnicity (ibid.: 31; cf. 2004: 1556–7). Okin’s second and third concerns about the developments of PL are mutually reinforcing. If Rawls is willing to tolerate sexist comprehensive doctrines as reasonable, and to permit them in family life, then the families in which they reign will not foster a sense of justice in children. Male and female children will see women facing different burdens and benefits from men, and female children are likely to grow up believing that they can expect different, and typically inferior, opportunities and outcomes to their male siblings. Such gender inequality is not a good training ground for citizens in a just society, for when it comes to the political realm, justice as fairness requires women to be treated as free and equal persons. The friction between a comprehensive doctrine based on an unequal view of gender and the political doctrine premised on women’s equality would be significant, with the message children learned in the household conflicting directly with the stance they are required to adopt and endorse as citizens (ibid.: 28–9). Given that Rawls coined the comprehensive–political distinction to address the problem of stability, Okin would deem this a failure, because permitting this sort of schizophrenia between the ideals of the household and those of the polity is not conducive to citizens affirming and internalizing their society’s principles of justice. Paradoxically, however, such schizophrenia is also a source of hope for Okin, for even if Rawls tolerates sexist comprehensive doctrines in the home, schools are required to teach some civic education, and children could be exposed there to the idea of citizens as free and equal, which could go some way towards mitigating sexist lessons inculcated in the home (ibid.: 32). However, such formal lessons in equality will have to jostle with deeply ingrained and frequently unconscious messages absorbed during socialization, which are not easily dislodged. Indeed, in a book review of PL, Okin 74

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points out that citizens spend more time, and tend to be more emotionally engaged, in what Rawls deems to be non-political institutions such as families, schools, churches and voluntary associations than in the political realm. If the former can be regulated by comprehensive doctrines that do not affirm equality and freedom for all, then citizens would have much less contact with the ideas of justice that they are supposed to not only endorse but make their own as members of the well-ordered society. Thus, even if the theory of moral development in section three of TJ is meant to carry over into PL, it faces a problem because in TJ Rawls assumed, as we saw, that these institutions were just. Given its tolerance of a variety of comprehensive doctrines, PL seems unable to hold this assumption in place (Okin 1993: 1011). Okin’s many and major concerns about the changes to justice as fairness in the move from TJ to PL, combined with the one questionable area of promise, suggest that the feminist potential she detected in Rawls has largely evaporated. Yet in the interval between TJ and PL, families have not become more just: “typically, heterosexual couple-based families in our society are unjust in their distributions between women and men of work, power, opportunity, leisure, access to resources and other important goods” (1994a: 35; cf. 38, 42–3). Nor has the epicentre of family injustice – the division of domestic labour – shifted. Indeed, Okin provides more empirical evidence that children growing up in houses where women carry a disproportionate share of the domestic burden imbibe this pattern of injustice.10 The need for a theory embracing family justice is, therefore, as urgent as ever but this phase of Rawls’s thinking offers next to no guidance on this: “central aspects of PL render the problem of applying the principles of justice to the family and the gender structure of society more intractable than they were in TJ” (ibid.: 25; cf. 2004: 1538, 1554–5; 2005a: 241, 243).

3. “I SHOULD LIKE TO THINK THAT OKIN IS RIGHT” (RAWLS 2001: 167)

Okin’s bleak conclusion about the value of PL for feminism is not, however, the end of her encounter with Rawls. She reports that for some years prior to PL’s publication, a manuscript had been circulating in which Rawls engaged his feminist interlocutors, exploring how justice as fairness would incorporate women as free and equal individuals.11 None of these ideas made their way into PL, but they appeared some years later in Justice as Fairness: A Restatement (JFR) and in “The Idea of Public Reason Revisited” (IPPR) (Okin 2004: 1554–5). The content of chapter 50 of JFR, “The Family as a Basic Institution”, is very similar to that of section five of IPRR, “On the Family as Part of the Basic Structure” (IPPR: 156–64), for in both, Rawls seeks to clarify 75

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the place of the family in justice as fairness.12 JFR mentions only Okin, but IPRR nominates Nussbaum, Sharon Lloyd and Linda McClain along with Okin as encouraging Rawls “to think that a liberal account of equal justice for women is viable” (IPPR: 156–7 n.58). In both these writings, despite some equivocation, Rawls ends up with a position that vindicates many of Okin’s earliest claims, based on her reading of TJ, that a Rawlsian theory of justice holds considerable promise for feminist liberalism. Rawls reaffirms the family’s location in the basic structure, explains how considerations of justice are relevant to it, criticizes the unequal division of domestic labour as unjust, places severe restrictions on when such a division could be acceptable, rejects any firm public–private or political–non-political split, endorses a variety of family forms and reiterates the family’s central role as a school of moral development. He also supports a number of Okin’s policy proposals. Rawls firmly rejects the “misconception” that the principles of justice “do not apply to the family and that therefore they cannot secure equal justice for women and their children” (IPPR: 158, emphasis added; cf. JFR: 163).13 Although the principles of justice apply to the basic structure, and the family is part of that, the principles do not apply directly to the family. They do not regulate its “internal life” (IPPR: 163; cf. JFR: 158). Rawls resists any suggestion that they should: “We wouldn’t want political principles of justice – including the principles of distributive justice – to apply directly to the internal life of the family” (IPPR: 159; cf. JFR: 165).14 But if political principles affect without governing the family, the question of their impact remains. Rawls begins to answer this in an unpromising way: by assimilating the family to “other” associations such as churches and universities. This is not to say that these organizations have no principles of justice to govern them, only that their principles are not political ones (IPPR: 158–9; JFR: 164, 166). Such an analogy between the family and other associations is, however, unhelpful as these other institutions do not belong to the basic structure, so there is no reason to expect that the two principles would apply to them. Rawls’s comparison of the family to associations is further troubled by his conception of society as a closed system, entered only by birth and exited only by death (JFR: 182). No one chooses the society into which they were born: we are thrown into it, “find[ing] ourselves in a particular political society at a certain moment of historical time. We might think our presence in it … is not free” (JFR: 4; cf. 28). Our membership of any given society can feel like a non-voluntary outcome, and this could seem like an affront to free and equal persons. To minimize this danger, Rawls insists that society be as just as possible so that its members can reconcile themselves to their membership and feel as free and equal as possible (JFR: 4). Membership of associations is, by contrast, voluntary. Entry might not always be voluntary – for a child being brought up as part of a 76

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religious community, for example – but exit should always an option for them as adults. Rawls’s comparison of families to associations overlooks the fact that family membership is more akin to belonging to a society than to joining an association. Indeed, the way in which people become members of a society is typically through their family, so these two forms of belonging dovetail. Participation in both the family and society starts involuntarily for children with birth or adoption, so that our first membership of families is not consensual (cf. Okin 2005a: 242; Nussbaum 2000b: 274). If adults decide to start a family by marrying or cohabiting and then raising children, this may be a free choice by them, but not all births are chosen.15 Yet even for adults who might enter voluntarily, leaving the family is not so easy (cf. Okin 2005a: 241). If children or property are present when a marriage or marriage-like relationship dissolves, former spouses or partners can be forced to go on interacting and cooperating with one another. Parents who no longer live with their children can be bound to them by economic and legal obligations. In such cases, any desire to quit one’s family cannot be wholly realized, at least while there are dependants. At a more distant level, even individuals who determine to estrange themselves from their biological families carry with them the genetic constitution and propensities towards certain illnesses that derive from membership of a biological family. So, entry to one’s family of origin is never voluntary for children, and escaping completely either one’s family of origin or a family one has created is not always possible for adults. Notwithstanding his comparisons between families and associations, nothing Rawls says about the family in these later writings limits its importance as a major institution that shapes a person’s life and expectations, so theoretically and normatively the family should remain squarely within the basic structure. Although equivocating about what it means to include the family in the basic structure, Rawls is clear that family dynamics are not impervious to considerations of justice. Acknowledging that “some may think that if those principles [of political justice] do not apply directly to the internal life of families, they cannot ensure equal justice for wives along with their husbands” (IPPR: 158), he sets out to show the relevance of justice to family operations even without the direct application of the two principles. As he sees it: [P]olitical principles do not apply directly to its [the family’s] internal life, but they do impose essential constraints on the family as an institution and so guarantee the basic rights and liberties, and the freedom of opportunities,16 of all its members. This they do … by specifying the basic rights of equal citizens who are the members of families. The family as part of the basic structure cannot violate these freedoms. Since wives are equally citizens with their 77

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husbands, they have all the same basic rights, liberties and opportunities17 as their husbands; and this, together with the correct application of the other principles of justice, suffices to secure their equality and independence. (IPPR: 159; cf. JFR: 164) Rawls uses strong language to reiterate this point about people carrying their rights and liberties as citizens into the family: “The equal rights of women and the basic rights18 of their children as future citizens are inalienable and protect them wherever they are. Gender distinctions limiting those rights and liberties are excluded” (IPPR: 161; cf. JFR: 166). An important entailment of this idea that members of the just society have inalienable rights is that there is neither a public–private nor political– non-political separation that would allow rights, liberties and opportunities enjoyed in the first domain to be suspended or transgressed in the second. In this regard, Rawls addresses another of Okin’s major concerns: that he operates with a public–private distinction that relegates the family to the private realm and thus beyond the reach of justice. On the contrary, Rawls declares: Political liberalism does not regard the political and the nonpolitical domains as two separate spaces, each governed solely by its own distinct principles. A domain, so-called, or a sphere of life, is not, then, something19 given apart from political conceptions of justice … The principles defining the equal basic liberties and20 opportunities of citizens always hold in and through all so-called domains … If the so-called private sphere is alleged to be a space exempt from justice, then there is no such thing. (IPPR: 160–61; cf. JFR: 166) While Rawls does not go so far as to say that the family is a political entity, he repudiates any strict political–non-political distinction and makes political principles relevant to family dynamics. His powerful rejection of any idea that the private sphere is exempt from considerations of justice means that the aforementioned inference Okin drew from PL – that the distinction “between the political and the nonpolitical coincides with [Rawls’s] distinction between public and nonpublic” (1994a: 27) – is no longer valid. The fundamental individual freedoms and equalities guaranteed by the principles of justice, which were developed for the public realm, extend to the family. One of Okin’s abiding concerns has been the unequal division of domestic labour. Rawls agrees that “a long and historic injustice to women is that they have borne, and continue to bear, an unjust21 share of the task of raising, nurturing, and caring for their children” (IPPR: 160; cf. JFR: 166). In so far as the 78

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unequal division of domestic labour has contributed to women’s inequality, “steps need to be taken either to equalize their share, or to compensate them for it” (IPPR: 162; cf. JFR: 167). Rawls also argues, as does Okin, that unequal divisions of domestic labour can be acceptable in a just society if they have been freely agreed to by the persons thus encumbered. But he lays down stringent conditions before this can be acceptable: any traditionally gendered division of labour must be “fully voluntary and … not result from or lead to an injustice” (IPPR: 161). For Rawls, as for Okin, such a division of labour is not legitimate if based on the fact that women’s overall earning power is less than men’s because of gender discrimination in the paid workforce (IPPR: 162). A choice is fully voluntary only “when all of the surrounding conditions are reasonable, or fair” (IPPR: 162 n.68). He avoids any simple inference that if a person acted in a certain way in the absence of obvious coercion then he or she freely chose this course. Rawls’s tolerance of traditional gendered divisions of domestic labour is thus severely limited: even if inspired by religious beliefs, they are acceptable only when they derive from the free choice of the person shouldering the greater burden, when that choice is made in just conditions and when it does not create any injustices. This seems to go a long way towards alleviating Okin’s fear that under the mantle of the reasonable, Rawls would tolerate sexist comprehensive doctrines. Beliefs about natural hierarchy or separate but equal spheres between the sexes would be put under considerable pressure by the strict conditions placed on unequal divisions of domestic labour. Despite his claim that specifying how any society does this is not a task for political philosophy, Rawls endorses the idea of a woman’s domestic work entitling her to half the household income. He seems especially troubled by Okin’s observation that, on divorce, men can leave their families in a parlous economic condition and refers readers to “an instructive discussion” in JGF (JFR: 167 n.52). He concludes forcefully that “A society that permits this does not care about women, much less about their equality, or even about their children who are its future” (IPPR: 163; cf. JFR: 167). This moves him to ask whether such a society is “a political society at all” (JFR: 167). If “a political society is a system of cooperation from one generation to the next” (JFR: 167 n.53), a society that allows children to be cast off economically in this way is not a system of cooperation across the generations. Here Rawls is effectively adding to Okin’s arsenal by providing the idea of society as a fair and intergenerational system of cooperation as another way in which the framework of justice as fairness can serve familial justice. According to Sharon Lloyd (1994: 361–2; 1995: 1331–2), Rawls’s requirements for the family to be just include: freedom to marry; guarantees of equitable division of material assets and equitable paternal support upon divorce; publicly provided or subsidized childcare; family leave and flexible 79

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working hours; comparable worth policies; affirmative action for women and equal access for women to equally good jobs. Lloyd’s list suggests that Rawls has accepted most of Okin’s policy proposals for promoting gender justice.22 From WWPT onwards, Okin argued for a more just model of the family as well as for a more flexible and capacious conception, one that recognizes a variety of family forms. Rawls effectively endorses her call for pluralism here, contending that his conception of justice could accept any form of the family – “monogamous, heterosexual or otherwise” – if it fulfils the basic social functions of providing “a reasonable and effective way of … raising and caring for children, ensuring their moral development and education into the wider society” (JFR: 163). This conveys his attitude towards gay and lesbian rights to marriage: if non-heterosexual families can fulfil these basic functions, they are acceptable (JFR: 163 n.42). This same point appears in IPPR with some additions, for Rawls frames the issue in terms of comprehensive doctrines improperly affecting political matters: [T]he government would appear to have no interest in the particular form of family life, or of relations among the sexes, except in so far as that form or those relations in some way affect the orderly reproduction of society over time. Thus, appeals to monogamy as such, or against same-sex marriages, as within the government’s legitimate interest in the family, would reflect religious or comprehensive moral doctrines. Accordingly, that interest would appear improperly specified. Of course, there may be other values in the light of which such a specification would pass muster: for example, if monogamy were necessary for the equality of women, or same-sex marriages destructive to the raising and educating of children. (IPPR: 147; cf. 157 n.60) Lloyd notes that “Alternative families find an unexpected friend in Rawls” (1995: 1328), but his openness to non-traditional family forms seems to be a logical extension of his liberal commitments, and in particular his regard for reasonable pluralism.23 It does, however, create problems for his belief that most religions are reasonable comprehensive doctrines (PL: 59) and that all reasonable comprehensive doctrines can endorse political liberalism, for many religions oppose same-sex marriage.24 In light of this, Rawls faces a trilemma: remove acceptance of same-sex marriage from the components of political liberalism; deny that these religions are reasonable; or admit that justice as fairness is not a political, but instead a comprehensive or partially comprehensive, form of liberalism. Irrespective of this complication, this issue of plural family forms is another on which, when he finally does articulate views on gender and the family, Rawls agrees with Okin. 80

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As we have seen, one of Okin’s concerns about PL was that it ignored the family’s role as the first school of citizens’ moral development. This lacuna has been rectified in Rawls’s later writings and once again we witness him adopting Okin’s position. His neutrality about what form the family takes is qualified by reference to the value of women’s equality and the family’s ability to raise and educate children in a way befitting them for their future in a well-ordered society (IPPR: 147; cf. 157 n.60; JFR: 163). He talks generally of the imperative that the family ensure children’s “moral development and education into the wider culture” (IPPR: 157; JFR: 163). He refers to the family’s “value in cultivating and encouraging the attitudes and virtues” supporting the institutions of a “just democratic society” (JFR: 168). Rawls effectively reiterates Okin’s point about a gender-structured household providing a poor start to the child’s education for democracy, for the injustices many women face regarding the unfair division of domestic labour and their economic vulnerability in the aftermath of divorce: tend to undermine children’s capacity to acquire the political virtues required of future citizens in a viable democratic society. Mill held that the family in his day was a school for male despotism: it inculcated habits of thought and ways of feeling and conduct incompatible with democracy. If so, the principles of justice enjoining democracy can plainly be invoked to reform it. (IPPR: 160; cf. JFR: 166) This time Rawls gives explicit direction that his original account of the family as a school of moral development in section three of TJ carries over into this work (IPPR: 161 n.66; JFR: 163 n.41). The inconsistencies Okin detected in the continuation of this position in PL seem to have been dissolved by Rawls’s view that the family should be a just institution. He concludes his discussion of the situation of women in justice as fairness by agreeing that if “the gender system includes whatever social arrangements adversely affect the equal basic liberties and opportunities of women, as well as those of their children as future citizens, then surely that system is subject to critique by the principles of justice” (IPPR: 163; JFR: 167–8). Yet despite what appears to be a resounding vindication of her argument about the feminist potential in justice as fairness,25 Okin’s reaction to these developments is, once again, mixed. While grateful that Rawls eventually responded to his feminist interlocutors and adopted some of their recommendations (Okin 2004: 1565), and while pleased that he offers a substantive, rather than merely formal, conception of women’s equality (2005a: 245), Okin retains some reservations. She remains troubled by his unwillingness to apply the principles of justice directly to the family (2004: 1563, 1567; 2005a: 81

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245)26 and puzzled by his comparisons of families to associations (2004: 1563). She find “a lot of confusion here, which I have yet to completely sort out” (ibid.: 1564). Okin’s untimely death robbed her of the opportunity to sort out Rawls’s meaning more fully, but I would argue that the major concerns she expressed about the direction of Rawls’s thought after TJ had been addressed.

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Establishing group rights to enable some minority cultures to preserve themselves may not be in the best interests of the girls and women of those cultures, even if it benefits the men. (MBW: 23) Chapter 3 proposed that Okin’s liberalism is best understood as a liberalism of shared meanings. Her endorsement of liberal values for women is tied to the existence of a liberal society and appeals to an existing discourse about justice. This chapter surveys some of Okin’s encounters with situations where liberal meanings might not be shared, starting with her most controversial writing, “Is Multiculturalism Bad for Women?” Because this short work received much critical attention, several of the major objections to Okin’s position are canvassed and appraised. Following the discussion of MBW comes an account of Okin’s worries about what I call the tacit consent approach to membership of cultural and religious minorities. In these writings, Okin continues to engage the intersectionality debate, with its emphasis on differences among women and their significance for feminist theorizing. The chapter concludes with some reflections on whether Okin’s liberalism fosters or hampers her ability to incorporate insights from the intersectionality literature, with particular reference to women’s self-interpretations.

1. “IS MULTICULTURALISM BAD FOR WOMEN?”

One of the things that makes Okin a feminist liberal is her conviction that liberalism should be committed to providing the opportunity for men and women to be equal participants in all areas of life. The liberal tradition has not always realized this promise, but Okin suggests that it puts resources for immanent critique at feminists’ disposal whenever a liberal society fails to 83

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deliver on this potential for gender equality. This faith in liberalism’s principled commitment to gender equality informs her discussion of group rights in MBW.1 She defines her feminism there as “the belief that women should not be disadvantaged by their sex, that they should be recognized as having human dignity equal to that of men, and that they should have the opportunity to live as fulfilling and as freely chosen lives as men can” (MBW: 10; cf. 12; Berkowitz 1999). In its essentials, MBW’s position continues the themes begun in WWPT, deriving as it does from: Okin’s belief in women’s equal moral personhood with men and concomitant critique of the functional view of women; the danger of treating families or cultural groups as proxies for their individual members, when both collectivities comprise individuals who might have divergent as well as shared interests; her focus on the domestic realm and the impact of women’s unequal treatment there; and her emphasis on gender formation within the family. What is new in MBW is that Okin trains her gaze on cultural and religious minorities within Western, liberal societies and questions the extent to which they depart from or reject the liberal possibilities in the wider culture. This could lead us to expect her to grapple with the problem posed by the absence of shared liberal meanings in these situations. However, her primary addressees are not members of these cultural and religious minorities themselves but rather liberal defenders of group rights for such minorities. Staying on the familiar terrain of shared liberal meanings, she speaks to those who assume that group rights represent a logical extension of liberal values. Their position holds that: in the context of basically liberal democracies … minority cultures or ways of life are not sufficiently protected by the practice of ensuring the individual rights of their members, and as a consequence these should also be protected through special group rights or privileges. (MBW: 10–11, first emphasis added)2 Okin’s major interlocutor is Kymlicka, “the foremost contemporary defender of cultural group rights” (MBW: 11).3 She takes Kymlicka to typify “most liberal defenders of group rights” in being “less prepared to defend the rights of groups that are themselves internally illiberal, in that they impose internal restrictions on their members or discriminate against some of them” (1998b: 665; cf. 678). This viewpoint thus distinguishes between groups being given rights to protect their culture against external pressures on the one hand versus internal rights to limit individual members’ freedoms on the other. Liberals cannot defend group rights that enhance the control of some group members over others (Kymlicka 1995: 109–10, 113, 123, 126; 2002: 340–43). 84

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Thus despite the presence of the term “multiculturalism” in the work’s title and throughout, Okin’s target is narrower, for she does not oppose the continuation of all traditional cultural or religious practices nor attempts at crosscultural understanding. The closing lines of her reply to her critics underscore this, urging the “need to strive toward … a form of multiculturalism that gives the issues of gender and other intragroup inequalities their due … a multiculturalism that effectively treats all persons as each other’s moral equals” (1999b: 131; cf. 1998b: 664). Okin asks that the practices and beliefs of a cultural or religious minority pertaining to gender be carefully scrutinized before any argument be made that it deserves special rights to preserve its traditional culture (1999b: 117). Gender equality must be part of the requirement that such groups enjoy autonomy only in so far as they are internally liberal in their practices. She thus invites liberal defenders of group rights to follow her in taking gender equality seriously as a fundamental liberal value. When this step is taken, however, significant tensions emerge between liberalism and the endorsement of group rights for minority cultures and religions (MBW: 9–11, 20–21; cf. 1998b: 664; 2005c: 101). In Okin’s estimation, the link between maintaining traditional cultures and enhancing men’s control over women “shouts out to us in the examples given in the literature on cultural diversity and group rights within liberal states” (MBW: 17). A number of the issues listed in MBW bear this out, for it is females who: wear the veil; undergo clitoridectomies; die in so-called honour killings; are the multiplied spouses in polygamy (making it more appropriate to speak of polygyny); are most likely to be disadvantaged by traditional laws about marriage, divorce and child custody; are treated even more unfairly after rape; and are more likely to be consigned to a life of unpaid domestic labour (MBW: 13–15, 17). Such potential for conflict between gender equality and group rights had gone largely unnoticed, however (MBW: 9, 20; cf. Deveaux 2006: 4).4 Okin ventures two explanations as to why liberal defenders of group rights for cultural and religious minorities have been deaf to the ways in which perpetuating such traditions can entrench men’s power over women. The first is that much of this takes place in the private sphere, which has traditionally, albeit selectively, been treated as if it were beyond the purview of politics (MBW: 21–3). Liberal defenders of group rights might think that formal, de jure equalities for women suffice, but, as Okin has long argued, this ignores entirely the powerful impact that dynamics within the domestic realm have on women’s lives. Injecting one of her long-standing themes into a new context, she reminds us that: the distribution of responsibilities and power at home has a major impact on who can participate in and influence the more public 85

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parts of cultural life, where rules and regulations about both public and private life are made. The more a culture requires or expects of women in the domestic sphere, the less opportunity they have of achieving equality with men in either sphere. (MBW: 13)5 A second reason why liberal defenders of group rights have ignored the ways in which reproducing traditional cultures and doctrines can reproduce men’s power over women is that their focus has been on power relations among, rather than within, groups. The question preoccupying proponents of group rights had been to what extent members of minority groups are disadvantaged by having to conform to the rules and mores of mainstream culture, rather than what power relations within those groups are like. When attention turns to this latter issue, it emerges that group rights might not benefit all group members equally. When pertaining to the sorts of practices outlined above, they can serve the interests of men to the detriment of women (MBW: 12, 23–4). Okin does issue one caveat here, however, which is that older female members of cultural or religious minorities can themselves be advocates of practices that she believes disadvantage women (MBW: 22, 24). She attributes this to the phenomenon of adaptive preferences, for when individuals cannot exercise a wide range of choices, and feel unable to change their situation, they can become satisfied with and attached to what they have and know (1999b: 126; cf. 2005b: 88).6 Younger women, by contrast, might be less invested in continuing certain aspects of their culture or religion. Hence Okin’s recommendation that, when examining intragroup power dynamics, “the perspective of the younger women” be afforded special attention (1999b: 117; cf. 126–7).7 She insists that “it is not enough for those representing the liberal state simply to listen to the requests of the self-styled group leaders” (ibid.: 117; cf. 2005b: 72–3; 2005c: 90). Her original essay closes with the warning that “Unless … young women … are fully represented in negotiations about group rights, their interests may be harmed rather than promoted” (MBW: 24).8 One of Kymlicka’s arguments in favour of group rights for some cultural minorities derives from the Rawlsian primary good of self-esteem. Those who belong to a society’s non-mainstream cultures are not being treated with equal respect if their culture is allowed to wither and they have to adapt to a new one (Kymlicka 1995: 108–9; cf. MBW: 20). Okin takes up this appeal to self-esteem to ask that it be considered from the standpoint of gender, urging that all girls and boys in liberal societies grow up in cultures and households that value them as persons and treat them as equals. She fears that many traditional cultures do not offer this opportunity to females, which puts a serious dent in the self-esteem defence for group rights (MBW:  22). 86

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Okin is not suggesting that minority cultures are uniquely culpable in their tendency to subordinate women. On the contrary, “most cultures have as one of their principal aims the control of women by men” (ibid.: 13). As this suggests, and as all of Okin’s work up to and after MBW has insisted, liberal societies are far from perfect when it comes to gender equality. She is the first to admit that “Western cultures, of course, still practice many forms of sex discrimination” (ibid.: 16). What distinguishes them from more traditional cultures is the presence and public affirmation of values that can be mobilized for attacking and undoing women’s subordination. Thus Okin refers to “the norm of gender equality that is at least formally endorsed by liberal states (however much they continue to violate it in their practices)” (ibid.: 9). Whatever the many shortcomings of liberal societies when it comes to achieving gender equality, she finds hope in the fact that women in more liberal cultures are: legally guaranteed many of the same freedoms and opportunities as men. In addition, most families in such cultures, with the exception of some religious fundamentalists, do not communicate to their daughters that they are of less value than boys, that their lives are to be confined to domesticity and service to men and children, and that their sexuality is of value only in marriage, in the service of men, and for reproductive ends. (Ibid.: 16–17; cf. 19) Liberal societies have, partly owing to feminist pressure, taken some strides towards attaining equality and freedom for women and in making this, officially at least, a presumptive norm in many areas (ibid.: 19).9 Okin believes that these advances and expectations should be accessible to all women in liberal societies but fears that group rights for cultural and religious minorities would restrict this.

2. MBW’S RECEPTION

MBW received a great deal of attention, much, probably most, of it critical. It was published along with fifteen replies10 and Okin’s reply to those replies. Many other commentaries followed, and it continues to be a touchstone in the group-rights literature. A major concern for Okin’s critics was her representation of minority cultures; she is charged with highlighting their worst aspects and treating them in stereotypical ways. A second major concern was her uncritical stance towards liberalism; indeed, this was often directly related to the first, with Okin being held to valorize liberalism and castigate non-liberal traditions in a simplistic, dichotomous way. Some critics take 87

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her to be suggesting that liberal cultures have solved the problem of gender equality and to be touting a sort of liberal triumphalism. A passage from Anne Norton’s vigorous critique of MBW encapsulates some of these concerns: Liberalism is presented as a set of ideas and principles, despite the fact that the practices of Western liberal cultures may not accord with these. Other cultures, not of the West (or not, at least, included in Okin’s West), are assessed not according to their principles but according to their practices. When men in the United States beat their wives, it is an aberration, counter to the liberal principles that govern here. When Muslim men beat their wives, it is an act representative of the principles of Islam – whatever Koran or hadith may say. (2001: 741) While it is true that Okin highlights the worst aspects of minority cultures and religions without trying to balance this by identifying any of their good features, this can be explained by reference to her quite specific aims in this work. Despite the misleading terminology, her target is not multiculturalism per se. Rather, she wants to give pause to liberals who too readily assume that group rights are compatible with liberalism. Given her purpose, it is understandable that Okin homes in on aspects of minority cultures and religions that she deems problematic from the standpoint of gender equality. The value of the group’s culture or religion has already been appreciated by liberal proponents of group rights: its value is, as it were, built into the perspective she is questioning. She zooms in on their problematic features to encourage liberals supportive of group rights to reconsider their assessment with a full awareness of the gender inequality she identifies.11 With Okin’s task in mind, it becomes easier to appreciate that she is not, pace Norton, rendering judgements about the value, in toto, of “Other cultures, not of the West”. She is concerned with their unequal gender practices when carried out within Western societies. She is not making claims about what practices should or should not be tolerated worldwide. She is not, pace Azizah Y. Al-Hibri, indifferent to the distinction between women as “immigrants or residents in their own home country” (1999: 41; cf. Kaufman 2002: 231). Her concern is immigrant women, and other members of minority cultures and religions “in the context of basically liberal democracies” (MBW: 10). She is not, as Abdullahi An-Na’im points out, interested in “the resolution of those problems in non-Western societies” (1999: 60) (although AnNa’im offers this as a criticism of Okin). Okin is not dismissive of Islamic, Chinese or other non-Western cultures in general but is focusing on particular and, as she sees it, troubling aspects of traditional cultures that she does not want to see perpetuated uncritically in Western societies under the 88

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auspices of respecting and protecting cultural diversity.12 If I am right that Okin’s is a liberalism of shared meanings, it would be hard to know what standards she could legitimately invoke to criticize non-Western cultures in general. As this suggests, some of the criticism Okin received was apposite only if aimed at a bigger target. Her ambition in MBW is far more focused than its language sometimes lets on, and far more circumscribed than many of her critics appreciate. Thus Norton upbraids Okin for using multiculturalism “as a blanket term for all self-consciously culturally situated critiques of liberal universalism” (2001: 741–2). This gap between the capaciousness of the term “multiculturalism” and Okin’s actual object of criticism is also missed by Alys Eve Weinbaum, who interprets Okin as making the whole of multiculturalism synonymous with group rights and as answering the title’s question “resoundingly … in the affirmative” (2001: 295; cf. 296).13 While it is hard to sustain Weinbaum’s claim in the light of Okin’s closing injunction, cited above, that “we need … a multiculturalism that effectively treats all persons as each other’s moral equals”, even a sympathetic respondent such as Katha Pollitt can misunderstand what Okin means by multiculturalism. Pollitt sees multiculturalism as demanding “respect for all cultural traditions” (1999: 27) but, as shown above, this is not how Okin uses the term. The liberal defenders of group rights she engages already require such groups to be internally liberal. The definition of multiculturalism offered by the editors’ introduction is not Okin’s either, for they put forward as an “especially compelling formulation” the idea that multiculturalism is “the radical idea that people in other cultures, foreign and domestic, are human beings, too – moral equals, entitled to equal respect and concern, not to be discounted or treated as a subordinate caste” (Cohen et al. 1999b: 4).14 As the final remarks of Okin’s reply to her critics, quoted above, intimate, when multiculturalism is defined in this way there is no tension between it and Okin’s feminism (cf. Berkowitz 1999). Cynthia Kaufman identifies the incongruity between the work’s title and its more particular concerns as a source of confusion, observing that: A curious aspect of the book is the relationship between the narrow discussion of whether cultures should be allowed to have “special rights” – such as a right to kill a woman for adultery, or to practice polygamy in the United States – and a more broad discussion of the relationship between feminism and cultural pluralism … Okin did not title her original essay “Are Culture-Based Special Rights Good for Women,” nor did the editors of the book insist on a more narrow title. So as it is, the book purports to be about a general conflict between feminism and respect for cultural difference. (2002: 230) 89

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Not all of Okin’s readers detected this anomaly. When interpreters from a range of positions misconstrue something as fundamental as a key term in the analysis, some responsibility for this must fall at the author’s door.15 A clearer awareness of Okin’s task in MBW also explains why liberalism provides the yardstick by which other cultures are judged, for she is interrogating the liberal defence of group rights. She is intervening in a debate about what should be acceptable within the parameters of a liberal social formation and proceeds from the premise that only groups who are internally liberal can be candidates for such rights. This speaks to the complaint that “the norms of Western liberalism become at once the measure and mentor of minority cultures” (Bhabha 1999: 83; cf. Norton 2001: 741; Weinbaum 2001: 296; Deveaux 2006: 31–2). Okin judges practices by liberal principles because she is asking what should be legitimate within liberal societies when gender equality is included as a fundamental value. The continuum on which majority and minority cultures are located is formed of liberal values because liberalism is the basic normative and political framework for the societies grappling with the issue of minority cultures and religions,16 and Okin’s primary addressees are liberal defenders of group rights. She does this with full awareness that liberal societies frequently fail to live up to their own standards when it comes to the equal treatment of women. Yet a number of her critics miss this crucial point. An-Na’im (1999: 61), for example, detects a double standard in MBW that allows Okin to be more sanguine about gender inequality in the majority culture than in minority cultures. Homi Bhabha imputes to Okin the view that, in liberal societies, “the protection of domestic law produces an enabling and equitable familial culture for girls and women” (1999: 80). To counter this he cites statistics about domestic violence in the UK. Yet in MBW Okin points out that in Western societies “girls and women are also subjected by men to a great deal of (illegal) violence” (MBW: 16). In response to Bonnie Honig’s observation that marriage to a thirteen-year-old cousin is not unheard of in the US (1999: 39), Okin could point out that that would violate liberal principles too. Pace Norton’s claim above, when anyone in the US (Muslim, Christian or agnostic) beats a spouse, Okin would contend that it be seen as an aberration (at the very least!), counter to the liberal principles that govern there. In MBW, as in all her previous and many of her successive works, Okin engages in immanent critique, pressing liberal principles into service against illiberal gender practices in liberal societies. She sees no reason why female members of minority religious or cultural groups in liberal societies should be excluded from this. Norton’s review of MBW is representative on this issue too, pointing to the work’s “silence of [sic] the following question: ‘Is liberalism good for women?’ This question animated a generation of scholars examining the French and American revolutions. The answer they returned 90

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was a reluctant but resounding no” (2001: 744; cf. Honig 1999: 38; Weinbaum 2001: 296; Kaufman 2002: 230–31). While Okin might not pose the question about liberalism’s value for women explicitly in MBW, it has informed her work since WWPT. And she prefaces her liberal definition of feminism by stipulating that “By feminism I mean …” (MBW: 10), which signals her awareness that not all feminists abide by this conception (cf. 1998b: 661). Because MBW builds on her earlier work, some misunderstandings arise for those who interpret this short text without acquaintance with Okin’s wider stance. They might not share her assessment of liberalism’s promise for women – as Norton’s remarks indicate she would not – but being aware of it might have mitigated some misunderstandings of Okin’s intentions. But Okin seems to assume her readers’ acquaintance with her own history of immanent feminist critique of liberalism. She does not even mention it in the first part, citing it only in response to some of her critics (in Cohen et al. 1999a: 142 n.2). To obviate some of these misunderstandings about her view of the relationship between liberalism and feminism, Okin should have made the connections between MBW and the rest of her oeuvre clearer. Rather than creating a dichotomy between the West and the rest (Shachar 2009: 146), Okin locates mainstream and minority cultures in liberal societies on a continuum. Instead of radically contrasting patriarchal and non-patriarchal societies, she talks about them as more or less patriarchal (MBW: 22). While all are patriarchal, some have taken greater steps towards offering men and women equality. She holds that “Discrimination against and control of the freedom of females is practiced, to a greater or lesser extent, by virtually all cultures, past and present” (MBW: 21; cf. 1998b: 679). Most cultures, not just minority ones, “have as one of their principal aims the control of women by men” (MBW: 13). Most cultures claim an important stake in issues of gender, sexuality and reproduction (MBW: 12–13). “Domestic arrangements … provide a major focus of most contemporary cultures. Home is, after all, where much of culture is practiced, preserved, and transmitted to the young” (MBW: 13; cf. 1998b: 667). Okin concludes that “virtually no culture in the world today, minority or majority, could pass his [Kymlicka’s] ‘no sex discrimination’ test if it were applied in the private sphere” (MBW: 22). Her remarks about the patriarchal origins of Greek and Roman cultures and of Judaism and Christianity also seem designed, in part, to show that Western societies are as patriarchal in their founding myths as she takes Islamic ones to be (MBW: 13). For all these reasons, it is hard to accept that Okin “fails to bring into the equation the importance of sex inequalities within the mainstream social relations” (Deveaux 2006: 29; cf. 32). Given Okin’s remarks about the steps Western cultures have taken towards gender equality, it is hard to accept Sarah Song’s inference that Okin “suggests an account of cultures as monolithically patriarchal” (2007: 4). Instead, I 91

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read Okin as sharing Song’s own view that “Although the US, like other western democracies, publicly supports gender equality in many respects, struggles to transform social norms and practices to make such equality a reality are incomplete and ongoing” (ibid.: 5; cf. 9). My argument about Okin’s liberalism of shared meanings provides a framework for considering the way in which publicly endorsed equality norms can be used to attack and begin to undo gender inequality. Song is, however, to be credited for recognizing that Okin is not saying that liberal cultures are devoid of the patriarchy miring minority cultures. Song’s suggestion that instead of thinking in quantitative terms of cultures as more and less patriarchal, Okin should make room for qualitative differences and consider the diverse ways in which cultures are patriarchal, is also apropos. One curious aspect of Okin’s generalizations about cultures as patriarchal is her repeated allusions to the possibility that some are not. On the one hand, she refrains from universalizing, saying only that “Many of the world’s traditions and cultures … are quite distinctly patriarchal” (MBW: 14, emphasis added); that “virtually all of the world’s cultures have distinctly patriarchal pasts” (MBW: 16, emphasis added); that “Most cultures are patriarchal … and many (though not all) of the cultural minorities that claim group rights are more patriarchal than the surrounding cultures” (MBW: 17, emphasis added). Yet on the other hand she never supplies an example or even a hint of any exception to these trends. Thus she can aver, as we have seen, that “most cultures have as one of their principal aims the control of women by men” (MBW: 13, emphasis added) without specifying a culture, minority or mainstream, that has not been marked by men’s domination of women. Conversely, she allows for the existence of other more gender-egalitarian societies than liberal ones without identifying any: “some [of the world’s cultures] – mostly, though by no means exclusively, Western liberal cultures – have departed far further from them [their patriarchal pasts] than others” (MBW: 16). If Okin knows of cultures that are not patriarchal, or of societies that are less patriarchal than liberal ones, it is a great pity that she did not share that with her readers. Notwithstanding its distinction between the standpoints of older and younger women within minority religious and cultural groups, MBW has also been criticized for blanket generalizations about women. Norton refers to Okin’s “tendency to assume a critical unity among women with regard to cultures and cultural practices she finds distasteful or contemptible” (2001: 742; cf. Gilman 1999: 55; Honig 1999: 39). There is a certain irony in the charge that Okin treats the category of women monolithically, for she chides liberal defenders of group rights for treating minority groups as monoliths and paying little attention to the power differences within them (MBW: 12). But, as discussed in Chapter 2, §4, below, Okin is not oblivious to differences 92

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among women: her continued use of the category is not unreflective nor uninformed. It is, rather, a choice she makes to emphasize what she believes women have in common, despite the differences among them. A number of respondents charge that Okin accords too little, if any, agency to women in cultural or religious minorities. She writes as if such women are either too steeped in cultural or religious views or too burdened by injustice or both to exercise any freedom of choice or action (Honig 1999: 39–40; Deveaux 2006: 224; Phillips 2007: 26, 148, 150; Shachar 2009: 146, 148 n.23, 154).17 Yet this is hard to square with Okin’s condition that women be consulted before group rights be deemed legitimate, and her emphasis that young women in particular be heard. This demand must be premised on the belief that the women within such groups might have reservations, criticisms and misgivings about their groups that would be aired given the opportunity (cf. Phillips 2007: 26). Those who deny women’s agency, Okin could say, are those who consult only self-appointed spokespeople for such groups. Okin’s brief remarks on the need to consult female members of minority groups further suggest a faith that such women could work for change within their cultures if the current conditions of those cultures, and their current power holders, are not enshrined or ossified by the attribution of group rights (1999b: 117–18). Further evidence that she does not ignore female agency altogether, nor see women as speaking with one voice about the value of their culture, comes in her remarks about the (first) headscarf debate in France, where young women “are often at odds with each other – some viewing their cultural practices or insignia as positive statements of their identity, others seeing such things as imposed on them by their families or cultural leaders” (ibid.: 126). These remarks, although brief, also signal Okin’s appreciation that some women in minority cultures value elements of that culture. Yet she has been charged with pitting the category of women against that of culture and underestimating women’s attachment to their culture (Okin 2005b: 71; Phillips 2007: 151; Arneil et al. 2007: 1; Shachar 2009: 146–7, 149).18 These claims are associated with her speculation that when a minority culture in a liberal society is more patriarchal than the ambient culture, women within such groups: might be much better off if the culture into which they were born were either to become extinct (so that its members would become integrated into the less sexist surrounding culture) or, preferably, to be encouraged to alter itself so as to reinforce the equality of women – at least to the degree to which this value is upheld in the majority culture. (MBW: 22–3, second emphasis added)19 But the italicized “might” underlines the hypothetical nature of this claim and Okin clearly depicts cultural change as preferable to demise. 93

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The suggestion that minority cultures would be more hospitable to female members if they recognized women’s equality to “the degree to which this value is upheld in the majority culture” indicates again that Okin is working with a liberalism of shared meanings. There is not a universal, abstract set of liberal values providing the yardstick by which minority groups are measured; rather, they are compared to their surrounding culture. Okin’s remarks about young women’s differing assessments of the value of their culture’s practices also signal that she can see culture as a site of contestation and resistance, rather than a unified, homogenous whole (Benhabib 2002: 86, 103; Phillips 2007: 26–8).20 She writes of religious women seeking more gender-egalitarian interpretations of their faiths, and applauds “the exciting types of reinterpretation of Islam” some are pursuing (1999b: 122; cf. 123; Okin & Ackerly 1999: 149–51).21 The claim that Okin envisages cultures as separate, bounded, independent wholes (see Phillips 2007: 26–7) also seems off the mark. If anything, it is proponents of group rights who want to demarcate cultures from one another. Okin thinks that without such rights, cultures will breathe, change, fade out or die depending on the choices of individual members. These choices will, in turn, be influenced by interaction with the wider society (1999b: 118).22 But here it must be remembered that Okin is not implacably imposed to group rights. If it could be shown that some group rights were necessary to protect either a language or its members from discrimination, and that this did not unduly disadvantage women, she would not oppose them (MBW: 23; 1998b: 680; 2005b: 73). Jaggar reports that Okin took her positions on gender and culture to have been “misrepresented more than anything she had ever written” (2009: 168) and it does seem that Okin has often been criticized for positions she does not hold. But this is not to suggest that MBW is beyond criticism. I have already referred to the essay’s misleading title, to Okin’s loose use of the term multiculturalism and to her failure to even suggest how this essay continues some of her long-standing concerns. As Peter Berkowitz (1999) points out, some respondents share her commitment to equality and respect for women but suggest that these values can be realized in a number of ways. Okin’s rather peremptory replies fail to engage this potentially fertile terrain. And by addressing primarily liberal defenders of group rights, and thus remaining in her comfort zone of shared liberal meanings, Okin appears to talk about, rather than with, members of minority cultures and religions, treating them as objects of, rather than subjects in, the debate. It is not, however, strictly true that Okin ignores the views of members of minority cultures. She does, as we have seen, talk about the variety of attitudes towards headscarves among young women in France. She refers to the critical attitude regarding polygyny held by some of the women involved 94

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in it (MBW: 9–10, 15) and quotes a male immigrant from Mali to France in support of this practice (MBW: 15). She conveys the justifications for clitoridectomy by some of its African and Egyptian practitioners (MBW: 14–15) and recounts a Peruvian taxi driver’s explanation as to why it is appropriate for a man to marry a woman he has raped (MBW: 15). In these last four cases, however, Western newspapers are the source for her information (cf. Okin 2002: 211 n.14), which has generated criticism of her superficial use of sources in considering the standpoints of members of minority cultures (AlHibri 1999: 42; Bhabha 1999: 80; Norton 2001: 742–3; Kaufman 2002: 232; Phillips 2007: 2). Below I offer a slightly different angle on this by exploring the place that self-interpretations do and should occupy in Okin’s feminist liberalism.

3. NO EXIT

MBW is, as we have seen, directed at liberal defenders of group rights who require groups to be internally liberal before being entitled to rights of cultural preservation or religious tolerance. Defences of group rights that do not require such groups to be internally liberal were touched on there (MBW: 11) and had been raised in a related writing (1998b: 665, 670–71) but Okin focuses exclusively on this issue in “Mistresses of their Own Destiny: Group Rights, Gender and the Realistic Rights of Exit” (2002). The positions she engages there set great store by the right of an adult individual to leave his or her religious or cultural group (ibid.: 206). This freedom to leave is part and parcel of the fundamental liberal freedom of association. When such an exit option exists, it can be inferred that individuals who stay in a minority group are professing a form of tacit consent to its practices and beliefs, however illiberal they may seem. This is supposed to provide reassurance that such individuals are not trapped in these groups against their will.23 A good statement of the position Okin interrogates is supplied by Jeff Spinner-Halev, describing the ability of members of native groups in liberal societies to leave their group if dissatisfied. He writes that: If women were refused education and subjected to humiliation, many would undoubtedly flee … leaving a tribe is comparatively easy: no escape routes need be plotted, no visas are needed, no plane tickets must be purchased, there are no oceans to traverse or mountains to cross. Moreover, knowledge of a less humiliating way of life is easy to obtain. When a small group is surrounded by a much larger one, it is hard not to see how the outsiders live, particularly when one has citizenship in this larger society. If some 95

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people are treated very badly and exit is available, then many will surely take this option. (2001: 106)24 Spinner-Halev is not suggesting that leaving one’s group even in these circumstances is easy, but concludes with a version of what I am calling the tacit consent position: “exit is possible and it is practiced, which means that the challenge to individual autonomy by indigenous people is real but limited” (ibid.: 106). Once again, Okin finds that a stance in the debate about the freedom of minority groups to live according to their own norms and values neglects gender, in this case as a factor making the exit option viable.25 While it can be difficult for any individual to leave his or her cultural or religious group because of its influence on the person’s sense of self and because of attachments to a familiar way of life and loved individuals (Okin 2002: 222), leaving can be even harder for women than for men (ibid.: 206–7). When gender is taken into account, it transpires that this supposedly fundamental freedom is not distributed equally among group members. Or, rather, while all of a group’s adult members might be formally free to leave, there could be a gender gap in their capacity to exercise this freedom. Okin specifies three mutually reinforcing reasons why it can be harder for women to exit. First, women in traditional cultures tend to receive less formal education than men, for it is often assumed that they need less education to master what they must know for their future in the household. However, a limited education can be an obstacle to making one’s way in mainstream society (ibid.: 216–17, 224). Thus pace Spinner-Halev’s claim that “If women were refused education … many would undoubtedly flee”, Okin points out that being refused an education, or receiving only a limited one, can be an impediment to flight. Second, women in traditional cultures and religions often marry early, and if children issue from the union it can be very hard for a woman to leave. Taking the children or leaving them behind both pose problems (ibid.: 218–19, 224), which are compounded by the fact that divorce and custody laws in some minority groups can be highly unfavourable to women.26 Finally, if women are raised to believe that their purpose is to be of service to men, the idea of leaving might never occur. A certain level of selfesteem and conception of agency are needed to even conceive of exercising the exit option, but women in traditional cultural and religious groups are less likely to have had these capacities inculcated in them than are men (ibid.: 207, 219–20). Thus in response to Spinner-Halev, Okin could point out that acquiring knowledge of a less humiliating way of life is one thing but applying it to oneself another. A person raised to practise deference and self-denial might not even be able to imagine herself deserving the sort of dignity and 96

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respect available to others in the wider society. To muster the determination to escape humiliation, you have to believe that you deserve not to be humiliated. Yet people who have been humiliated, abused or even simply undervalued over an extended period of time, and especially during their formative years, might accept this as their lot. Arguments about the exit option take a level of self-esteem and agency for granted, neglecting that “oceans to traverse and mountains to cross” can be psychological as well as physical. Okin’s remarks about adaptive preferences from an earlier article are relevant here, for “Oppressed people have often internalized their oppression so well that they have no sense of what they are justly entitled to as human beings” (1994b: 19).27 Okin contends that all these considerations force a reassessment of the assumption that, when there is a surrounding liberal culture to which one can escape, remaining within a minority religion or culture represents a form of tacit consent.28 Less powerful members of a group may, precisely because of their powerlessness, be least likely to perceive themselves as having an exit option. Their lack of power can be exacerbated by the fact that their being unable or unlikely to leave can make other group members less attentive to their concerns. Here Okin returns to Albert Hirschman’s depiction of the strategies of exit, voice and loyalty that figured in JGF’s analysis of vulnerability by marriage (Okin 2002: 214). As she said there, “the nonexistence or low feasibility of the exit option can impede the effectiveness of voice, since the threat of exit, whether explicit or implicit, is an important means of making one’s voice influential” (JGF: 137). Less powerful members of such groups are caught in a double bind: assuming that their inability or unwillingness to leave is recognized by the group’s more powerful members (and Okin’s scenario assumes common knowledge), their power to improve their situation is weakened by their voice being discounted because of their inability or reluctance to leave (Okin 2002: 214). This is to say nothing of the fear that might prevent such group members from speaking out: less powerful members who are unlikely to leave a group might think twice before being openly critical, given the reprisals that could ensue.29

4. INTERSECTIONALITY AND SELF-INTERPRETATIONS

As we saw in Chapter 2, Okin incorporated some of the insights from the intersectionality literature into JGF while retaining gender as her primary focus. In a number of subsequent writings, she revisits this question of diversity among women and its impact on feminist theorizing about justice, during which time the intersectionality literature has continued to burgeon (Okin 1994b: 6; 1998a: 127). Yet in response to this growing challenge, Okin’s basic 97

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position does not change. First, she recognizes the importance of attending to the different experiences and perspectives among women and maintaining, qualifying or abandoning generalizations accordingly (1994b: 20; 1998a: 129). Second, she contends that spotlighting gender need not rule out or minimize other axes of oppression (1994b: 7; 1998a: 128). With regard to her first commitment – that women’s differences from one another be taken seriously, and generalizations altered when evidence emerges that differences make a difference – Okin accepts that some earlier feminists did theorize about women on the basis of a very limited sample: white, middle-class, heterosexual, educated women (1994b: 6; 1997: 18; 1998b: 665; 1998c: 42). Criticism of this has stimulated feminist scholarship to “become more inclusive and less inclined to false overgeneralizations” (1998c: 42). However, she fears that some intersectionality theorists are simply flipping this coin by dispensing too hastily with feminist insights solely because they were articulated by white, middle-class women (1994b: 7). In WWPT, Okin depicted the belief of some feminists that abolishing the family was necessary to women’s freedom and equality as the mirror image of the conservative claim that the gender-structured family is its only possible form (Chapter 2, §1). Here she implies that assuming that claims based on a limited section of women are applicable to all others and assuming that they are applicable to no others are two sides of the same coin. She holds in higher regard feminists who buttress claims about difference with empirical support, compared to those who insist, almost a priori, on the pre-eminent salience of difference (1994b: 8; 1998a: 129). Rather than dismissing earlier feminist insights as necessarily tainted by an essentialist view that all women are the same, Okin proposes that they be tested against the experience of women from different racial, class and ethnic backgrounds, to see whether they retain any value.30 There is, however, an important aspect of the intersectionality debate that Okin largely ignores: the issue of women’s self-interpretations. Part and parcel of drawing attention to the different but interlocking forces that situate women differently from one another is pointing out that, as a consequence, women experience things differently from one another. Women of different races may, for example, perceive what is notionally the same experience – domestic violence or rape – differently,31 just as women from the same race but in different social classes can experience such things, and themselves, differently. Angela Harris, for example, underlines the central role that black women speaking for themselves plays in avoiding feminist essentialism (1990: 585, 587, 590).32 While attention to self-interpretations is not at the forefront of Spelman’s analysis, it is compatible with a number of her remarks about some of the problems that have plagued feminist theory and with her suggestions about how to overcome them. Any feminist analysis should ask itself 98

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“have those under investigation been asked what they think?“ (1988: 139). Spelman advises that “having claimed the field, white middle-class women must start recognizing and hearing from women quite different from themselves” (ibid.: 182). Consider also33 Kimberle Crenshaw’s article, which coined the term “intersectionality”. Crenshaw’s key claim is that antidiscrimination law and discourse and even antidiscrimination activists tend to think of discrimination based on gender and that based on race as discrete. The discourse of gender discrimination is built on the experience of white women who claim that the only relevant factor in their unfair treatment is gender. The discourse of racial discrimination is built on the experience of black men, who claim that the only relevant factor in their unfair treatment is race (Crenshaw 1989: 140, 143, 151–2). The invisible norm against which both are measured is, of course, the white male. In defiance of these categorial separations, Crenshaw points out that “Black women can experience discrimination in any number of ways” (ibid.: 149): they can be discriminated against because they are women, because they are black or because they are black women. But because their experience does not fit neatly into the category of either race or gender, “antidiscrimination doctrine essentially erases black women’s distinct experiences” (ibid.: 146; cf. 149–50, 154). Crenshaw makes the (now familiar) point that white women are not entitled to speak about or on behalf of all women while they remain ignorant of the needs, perspectives and experiences of other women (ibid.: 154). “Because the experiential base upon which many feminist insights are grounded is white, theoretical statements drawn from them are overgeneralized at best, and often wrong” (ibid.: 155). Given her claim that “theory emanating from a white context obscures the multidimensionality of Black women’s lives” (ibid.: 157), the only way to redress this is to let black women speak for themselves and use this information to redraw categorial boundaries and recast identity concepts where necessary. Although her purpose in this article is to point out that the intersection of race and gender in the lives of black women in the US goes largely unacknowledged in current antidiscrimination discourse, Crenshaw’s implicit larger point seems to be that all identities are intersectional. It is only the privileging of race or gender that allows some people to overlook this about themselves. Patricia Hill Collins’s work is also illustrative of the central role that experience and self-interpretations play in the intersectionality literature. She claims that: Black women’s political and economic status provides them with a distinctive set of experiences that offers a different view of material reality than that available to other groups … African-American 99

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women, as a group, experience a different world than those who are not Black and female. (1989: 747)34 Black feminist thought, in Hill Collins’s rendition, exists in a symbiotic relation with these self-understandings, being both derived from, and returning to shape, them. Black feminist thought “rearticulates a consciousness that already exists” and “gives African-American women another tool of resistance to all forms of their subordination” (ibid.: 748). Hill Collins is here rehearsing the long-standing view about feminist thought mentioned in Chapter 1: that it must both express the experiences of actual women and weave the information from those experiences into theories that work to improve these women’s situations.35 As we have seen, Okin says little directly about the self-interpretations of female members of minority groups in MBW, although she makes space for their importance by underscoring the need to learn what these women think about their situation. I suggested above that such insistence on consultation points to her (untheorized) recognition of the agency of female minority group members. The importance attributed to consultation thus implies her awareness of both women’s agency and the importance of their self-interpretations. Indeed, one way of assessing a person’s sense of agency is via his or her self-interpretations. But on the whole, Okin does not engage this vitally important component of the intersectionality debate.36 This makes it easier to see why some readers of MBW accuse her of turning “other women” into objects, rather than subjects, in the debate. Apart from its centrality in the intersectionality literature, there are two additional reasons why Okin’s failure to engage women’s self-interpretation is a worrisome lacuna in her work. First, given Okin’s insistence on empirical approaches to difference issues, it would seem important to include selfinterpretations among the data drawn on to negotiate these questions, for it has long been argued that good social science requires some engagement with actors’ self-interpretations (Taylor 1985a,b). Second, when exploring the meaning of feminism in general, Okin underlines women’s experiences and self-understandings. Okin and Mansbridge declare, for example, that “A direct report of the way one perceives one’s own experience has great weight with feminists trying to make sense of their world” (Okin & Mansbridge 1993: 269; cf. 271). They write of the “experiential plurality, proceeding from different experiences differently perceived” that informs feminism (ibid.: 269). They insist that “In spite of caution derived from understanding the processes of false consciousness, feminism must be committed to crediting women’s experience” (ibid.: 285). Because it incorporates women’s diverse experiences, feminism changes as women with new experiences join the conversation (ibid.: 270–71, 285). This has already occurred through the 100

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critique by black women in the US of supposedly universal categories that actually encode only the experiences of white women (ibid.: 270, 279). Thus, when reflecting directly on feminist theorizing, Okin is highly cognizant of the need to appreciate and incorporate women’s diverse self-interpretations. Perhaps Okin’s neglect of self-interpretations is a point where her feminism and her liberalism push in opposite directions. Liberalism’s abstract individualism could be partly responsible for this neglect, for the liberal tradition is often taken to conceive of individuals as deracinated and decontextualized, devoid of particularizing features. If so, this poses an important problem for the project of contemporary feminist liberalism as mapped in this book, given the centrality of intersectionality claims in contemporary feminism. Two countervailing considerations are relevant in Okin’s case. The first is that, as we saw in Chapter 4, her image of the person behind the veil of ignorance considering principles of justice is of someone imagining what it is like to be a concrete other. A blend of reason and feeling is needed for the Rawlsian thought experiment; one has to strain to imagine what it would be like to be a person of a particular race, gender and class and ask what the just society would have to be like to be acceptable to such a person. So even if abstract individualism is a legacy of the liberal tradition, Okin has not accepted this bequest in its entirety. Second, the liberal commitment to equal moral personhood, to each person being considered an end in himself or herself, should foster a concern with self-interpretations, for part of the liberal project is to inspire individuals to see themselves and others in this way. A crucial element of Okin’s feminist liberalism is, accordingly, to encourage women to see themselves, and be seen by men and other women, as ends in themselves. How individuals understand themselves would thus seem to be a crucial ingredient of liberalism’s commitment to, and promotion of, equal moral personhood.

5. CONCLUSION

None of the above discussion of MBW is intended to suggest that Okin’s arguments are immune from criticism. By inserting this short work into the larger trajectory of her thought, we attain a clearer view of its aims and assumptions. Once this task has been performed, it becomes apparent that several of the criticisms of Okin’s positions have been misdirected. However, appreciating the wider context does not absolve Okin of all responsibility for those misunderstandings. She fails to indicate MBW’s place in that wider context. The work is mistitled, and its neglect of women’s self-interpretations when liberal meanings might not be shared is a major weakness. A clearer awareness of the work’s ambitions and limitations means that more targeted and 101

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robust criticism can be directed at it by those who remain unpersuaded by Okin’s position. Nor is Okin’s general response to intersectionality invulnerable to criticism. Some of her remarks suggest a failure to absorb the full force of its challenge. She concedes, for example, that for many people race and class: are at least as important factors in their political powerlessness [as gender]. But issues of class have been addressed quite thoroughly in political theory, and I am not an expert on questions of race … Also questions about gender inequality often have different kinds of answers. (1992b: 59) This assumes that race and class are wholly separable axes of oppression and identity from gender, which is precisely the view that intersectionality theorists challenge. Okin’s related suggestion that answers to problems of gender could be solved without attention to interlocking questions of race and class is also problematic. Her comments further imply that race and class are only relevant factors in powerlessness, whereas intersectionality theorists expose their typically unacknowledged role in power and privilege too. Elsewhere Okin discusses analogies between slaves and women (2005a: 244–5) but by effacing the existence of female slaves, this disregards a key insight of the intersectionality literature.37 In that same writing, she talks about black families as a unit (ibid.: 244), which transgresses her long-standing insistence that families comprise discrete individuals as well as being collective entities. The attention to self-interpretations that the intersectionality literature underscores should be a central part of Okin’s theoretical apparatus for three reasons: (i) the value of including self-interpretations among empirical data; (ii) Okin’s own definition of feminism as centrally concerned with women’s diverse self-understandings; and (iii) the wider concern of her feminist liberalism to engender in women a view of themselves as ends in themselves. As the next chapter indicates, Okin’s attention to self-interpretations increases as she deepens her engagement with contexts where shared liberal meanings cannot be assumed. The end of that chapter returns briefly to her later remarks on the group-rights debate, suggesting that her attention to women’s self-interpretations, which grows as her feminism goes global, feeds back into her approach to that question.

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[T]he inequality of the sexes … appears to have been present in all known societies and historical periods, but … has taken diverse forms and been affected by various causal factors at different times and in different social contexts. (Okin 1991c: 81) In 1994 Okin began to project her feminist liberalism onto the international plane. Many of the themes from her work on women in Western societies resonate when she does this: the functional view of women and its threat to women’s equal moral personhood; the danger of treating families as a unit, when individual members might have some divergent interests and needs; the importance of extending considerations of justice to the domestic realm; the emphasis on gender formation within the family. Because Okin’s initial conclusion that the injustices faced by women in less developed countries replicate in some important ways those of women in Western countries received a hostile response from Jane Flax, some of the issues at stake in their exchange are investigated. One implication of my claim that Okin’s feminist liberalism is a liberalism of shared meanings is that it does not begin as a universalist liberalism: nowhere in WWPT or JGF does she broach the question of whether liberal values are applicable to all women everywhere. Indeed, Okin and Mansbridge expected that “feminism, as it spreads across the globe, [will] take forms not easily predictable from Western experience” (Okin & Mansbridge 1993: 285). These considerations would seem to pose a problem for Okin’s attempts to extend her feminist liberalism internationally: on what basis could liberal values be relevant for women in contexts where they are not part of the wider culture and politics?1 Okin develops an (at least tacit) answer to this question, for as she deepens her engagement with contexts where shared liberal meanings cannot be presupposed, she becomes more explicitly attentive to women’s self-interpretations. This chapter goes on to tender some reflections on Okin’s view about the relationship 103

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between self-interpretations, solidarity and social criticism. It returns briefly to her last remarks on the group-rights debate, for it seems that the attention to women’s self-interpretations, which grows as she encounters non-liberal contexts, comes to inform her approach to that question too. This chapter concludes with some speculation about how the global aspect of Okin’s feminism might have developed had it not been for her premature death.

1. SIMILAR BUT MORE SO

Part of Okin’s response to the intersectionality debate was to emphasize the need to provide empirical support regarding when and how differences among women should make a difference to feminist thought (Chapter 5, §4). Her most forthright enactment of this claim comes in her 1994 article “Gender Inequality and Cultural Differences”. She examines whether, and to what extent, the problems and injustices she identifies for women in Western, liberal societies (but primarily the US) are experienced by women in poor countries inhabiting very different economic and cultural conditions (Okin 1994b: 8–9). In adopting this approach, Okin presents herself as following Spelman’s recommendation about the need for an empirical basis to the claims feminist theorists make about women (ibid.: 9, citing Spelman 1988: 137; cf. Okin 1995a: 512). The refrain “similar but more so” captures Okin’s overall finding that in many ways the position of women in such countries is similar to, but worse than, that of women in wealthier Western countries. In both cases much of the caring work women perform, which is deemed to be “women’s work”, is unpaid or underpaid and always undervalued (1994b: 13–14; cf. 1997: 21–4). In both cases female members of households do more of the work and enjoy fewer resources, such as food, health care, education and leisure time, than their male counterparts (1994b: 12). Such inequalities are troubling in themselves, but given her belief that the family is the first school of moral development, Okin worries that such households teach girls that they are less valuable individuals than boys. “Many Third World families, it seems, are even worse schools of justice and more successful inculcators of the inequality of the sexes as natural and appropriate than are their developed world equivalents” (ibid.: 13). In both cases a full appreciation of women’s contribution to society and the economy has been hampered by “the assumption that the household (usually assumed to be male-headed) is the appropriate unit of analysis” (ibid.: 10). In both cases the public–private dichotomy obscures women’s contributions and conceals the injustices they suffer.2 In comparing the situation of women in wealthier, industrialized countries to that of women in poorer ones, Okin does not, however, find only similarity. 104

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One marked difference arises from the fact that some women in poorer countries are prohibited by religious laws or cultural norms from engaging in paid labour (ibid.: 15). This exacerbates their poverty and intensifies their economic dependence on men. Women in Western countries were, of course, once formally barred from all manner of occupations simply because they were women, but that situation no longer obtains. In this regard, then, no contemporary analogue exists between the situation of women in poorer and in wealthier countries.3 This article thus bears out both aspects of Okin’s response to the intersectionality challenge. First, the extent to which women’s different contexts affect the salience of feminist analysis is treated as an empirical question. Second, Okin’s belief in gender’s relevance despite differences among women is vindicated, for she concludes that: “From place to place, from class to class, from race to race, and from culture to culture, we find similarities in the specifics of these inequalities, in their causes and their effects, although often not in their extent or severity” (ibid.: 21). Yet while claiming to follow Spelman’s recommendation about the need for an empirical basis for claims about women, Okin omits the cautions Spelman (1988: 140) issued for avoiding naive empiricism, which she ranks as scarcely better than essentialism. The theorist positing similarities or differences among women must be alert to a cluster of methodological questions. These include: Who is doing the investigating? Whose views are heard and accepted? Why? What criteria are used for similarity and difference? Finally, and most important, what is said to follow from the supposed existence of similarity or difference? Have those under investigation been asked what they think? (Ibid.: 139) Failing to question her own status as investigator and, once again, paying scant attention to women’s self-interpretations, Okin violates all of Spelman’s recommendations. Her methodological prescriptions for thinking about justice can help to explain this, however. Okin entertains the suggestion that feminist thought requires listening to the voices of women in radically different contexts from one’s own. Agreeing that this is important, she holds that it cannot be sufficient because of the problem of adaptive preferences: [W]e are not always enlightened about what is just by asking persons who seem to be suffering injustices what they want. Oppressed people have often internalized their oppression so well that they have no sense of what they are justly entitled to as human beings. (1994b: 19) 105

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Employing the Rawlsian device of the OP can avoid the problem of adaptive preferences, because it considers social arrangements from an array of positions and tries to imagine what it would be like to live with those arrangements while occupying those positions (ibid.: 19–20). Although this mechanism is devised to avoid the problem of self-interest in thinking about justice, Okin leads us to infer that it can also obviate the problem of wanting too little for oneself when oppression has dampened or destroyed expectations. (In Rawlsian terms, such people might express a mini-min strategy.) Another tool for dealing with the problem of those whose oppression has diminished their expectations for justice is to have “committed outsiders” (ibid.: 19) serve as critics of social injustice and, presumably, gradually raise the awareness of, and lower the tolerance for, injustices on the part of those subject to them. Okin links these two mechanisms of social criticism to one another, saying that: “committed outsiders can often be better analysts and critics of social injustice than those who live within the relevant culture. This is why a concept such as the original position … is so valuable, at least in addition to some form of dialogue” (1994b: 19). An extended version of the article clarifies her understanding of their connection, for committed outsiders “would encourage those within the culture to engage in Rawlsian theorizing – to try to imagine themselves in the OP, not knowing who in the social order they were to be once the veil of ignorance were lifted” (1995b: 293). Okin’s suggestion that the best way to encourage those in non-Western cultures to think about justice for themselves is via the Rawlsian veil of ignorance represents one of the few times when she departs from a liberalism of shared meanings. She seems to operate with a tacit liberal universalism that she never explicates or defends. The understanding of the role of the social critic implicitly underpinning Okin’s position takes us back to her critique of Walzer and his promotion of shared meanings as the best route to social criticism. In Walzer’s view, “Criticism works best … if the critic is able to invoke local values” (1987: 62). Notwithstanding Okin’s own practice as an immanent critic of liberalism, she expressed scepticism about how much social criticism was possible via Walzer’s preferred model of the connected critic exploiting the normative resources available in his or her own culture to criticize certain social practices (Chapter 3, §2). By championing the idea of the committed outsider, Okin effectively endorses the opposite model, which Walzer (1987: 64) calls asocial criticism. Yet in what she describes as an extended version of the paper, Okin explains that the criticism of committed outsiders will be more robust if they engage with the self-understandings of the women they are speaking for: “if they find out as much as they can about the culture and the meanings of its practices and differential allocations of resources from its members themselves. Understanding these people’s own perceptions of 106

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their situations is extremely important” (Okin 1995b: 293). While this is not a complete vindication of Walzer’s model of connected criticism, it does point to the need for a thorough understanding of the social meanings of the culture where criticism is being undertaken. Here Okin also specifies what was only implied about the need for committed outsiders to gradually raise the awareness of, and lower the tolerance for, injustices on the part of those subject to them. Uncovering the self-understandings of those subject to injustice should be a prelude to “politicizing the deprived so that they can begin to ask new questions about their cultural norms, with a view to improving their situation” (ibid.). By creating some space for self-interpretations in this way, Okin’s more elaborate account of her approach to social criticism allows her to incorporate some of Spelman’s methodological recommendations. Those under investigation are now asked what they think. But Okin’s failure to offer explicit reflection on who is doing the investigating is one of the things that makes her vulnerable to criticism by Flax.

2. FLAX REACTS

Okin’s conclusion that the injustices faced by women in less developed countries replicate in some important ways those facing women in Western countries received a hostile response from Flax. One of her major objections is that Okin wrenches the intersectionality debate out of context, for it began in the US, and was not just about the relationships between race, class and gender but also about the ways in which some women dominate other women. Okin has transported this debate to a wholly different environment by examining the similarities and differences among women in wealthier and poorer countries, exhibiting an indifference to the debate’s specificity, genealogy and politics (Flax 1995: 502–3).4 Recalling the original political motivations of the intersectionality debate also explains why Flax discusses the link between race and gender along with slavery in America (ibid.: 504–6), which does not, prima facie, seem germane to Okin’s argument. Framing the intersectionality debate as initially one about race and gender in the US (class falls out of Flax’s picture of America, becoming confined to her discussion of Third World women) allows Flax to accuse Okin of enlisting women in poorer countries “as evidence in a dispute among women in the First World” (ibid.: 502). Speculating about why Okin would efface that part of the intersectionality debate dealing with women oppressing other women, Flax invokes Okin’s (perhaps unconscious) desire to bracket her own implication, as a privileged white woman, in relations of oppression (ibid.: 503, 506–7). Flax further charges that occluding the politics of the original intersectionality debate allows Okin to ignore the politics of her own text, which, 107

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from Flax’s perspective, posits women in poor countries as helpless victims of injustice while women from wealthy countries advance clairvoyant analyses of their situation and serve as advocates for their liberation (ibid.: 501, 503–4, 507). The depiction of women from wealthy countries as “outsiders” suppresses their participation in a global economy linking wealthy and poor countries. Flax is also unpersuaded by what she takes to be Okin’s attempt to distil gender from other facets of women’s identities, connecting Okin’s location as a privileged white woman to her position on the possibility of separating gender from race in a person’s identity. The belief that this can be done is a prerogative of privilege: members of racially powerful groups, empowered by this to think of themselves as racially unmarked, mistakenly or arrogantly inflate their particular experience to cover everyone (ibid.: 505–6); or they treat race as a characteristic only of others (ibid.: 506, 510 n.22). As her complaints indicate, Flax deems power relations among women to be as important as relations of domination between men and women (ibid.: 503). With regard to Flax’s first complaint about wrenching the intersectionality debate out of its original context, there seems to be no obvious reason why a discussion about differences among women ignited in the US should remain there. Okin sees herself as taking the debate to its logical conclusion by looking at women who are more different from one another than are those in the US, by virtue of their shared nationality, citizenship or even just territorial location. And Flax herself cites contributions to the intersectionality literature by women outside this context (ibid.: 509 n.7, nn.11–13). It is not entirely clear, moreover, that Flax is engaging Okin’s actual position on the relation between gender and other dimensions of identity.5 Her opening assertion that Okin “has recently attacked the emphasis some feminists place on differences among women” (ibid.: 500) is not strictly true; as we have seen, Okin is not rejecting the emphasis on difference out of hand but only its a priori presumption (cf. Okin 1995a: 511). Although Okin remains receptive to differences that make a difference, Flax reads her as defending “an internally undifferentiated and conflict-free concept of gender. Gender is constituted through what women share, especially their differences from, and domination by, men. Women are defined by the similarities of their inequalities across race, class, and geography” (Flax 1995: 500; cf. 506). Yet Okin’s point is that women who are very different from, and unequal to, one another, face similar injustices, although those undergone by women in poorer countries are worse. She is not saying anything about harmony or conflict among these groups of women. She does not, moreover, claim that all the injustices they face are similar. Flax’s admonition that “Adequate theorizing about gender and justice requires attention to inequalities among women” (ibid.: 501) also seems misplaced, for Okin is not suggesting that women in poor countries are equal to those in wealthier ones. It is not the 108

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case that she treats “‘women’ … as a homogeneous category” nor does she “assume that ‘other’ (e.g., non-White) women have experiences ‘just like ours’ (White women) only more so” (ibid). Okin does not assume this latter point; instead, she points to similarities in women’s objective situations, demonstrating this on the basis of the literature on women and development and UN statistics on women in developing countries. Flax mentions but never questions Okin’s findings about the ways in which the injustices suffered by women in poor countries replicate those of women in wealthier ones (ibid.: 502). She never disputes Okin’s claims that in both contexts: women’s work is unpaid or underpaid and always undervalued; the household economy disadvantages females who contribute more but receive less; these dynamics must be seen as matters of justice; but the public–private distinction conceals these problems (cf. Okin 1995a: 512).6 Flax’s neglect of this aspect of Okin’s work is strange, given Okin’s underlining of the need to investigate the issue of difference empirically. Flax ignores what is explicitly the basic thrust of Okin’s article, preferring to elicit what she takes to be its unspoken features. Drawing on the work of Chandra Mohanty, Flax (1995: 509 n.7, n.13)7 could have considered whether Okin is guilty of Mohanty’s charge that some feminists use concepts such as household and sexual division of labour to simply assert similarities between Western and non-Western women. They assume that the concepts mean the same thing without paying attention to local contexts (Mohanty 1991: 67–8). Mohanty points, for example, to the increase in female-headed households in Western and non-Western societies but notes that this has different meanings in each. In Western countries, it could mean greater independence for women whereas in non-Western ones it could be a sign of women’s further impoverishment. Mohanty concludes that “The meaning of and explanation for the rise obviously vary according to the sociohistorical context” (ibid.: 68), and suggests that pointing out descriptive similarities is not the same as showing that they have the same meaning across Western and non-Western countries (ibid.: 67–8). As we have seen, Okin does not make assumptions but provides evidence for her claims of descriptive similarities in women’s situations, but because her evidence is not drawn from the micro-level of how the people living these situations experience them, she could be charged with paying insufficient attention to context and self-interpretations. It is not clear, however, that this level of detail is called for by Mohanty herself. Mohanty’s (ibid.: 68) claim that the sexual division of labour does not in itself indicate a devaluing of women’s labour also seems compatible with Okin’s approach, for in this context, by contrast with JGF, it is less the gendered division of activities itself that troubles Okin than the asymmetry between contribution and receipt. Women do more work than men yet enjoy fewer resources in return. 109

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Given the hierarchical power dynamics she discerns in the text, it is unsurprising that Flax finds Okin’s work an unpromising way to generate a theory of justice. She is more enthusiastic about the model of conversation as a route to justice than is Okin, although it must be remembered that Okin merely aired some concerns about its sufficiency as an approach to justice; she did not reject any role for it. Yet Flax’s only reply to Okin’s worry that those who have been oppressed might not be able to articulate claims of justice for themselves is to condemn her for failing to accord these women any capacity for agency and resistance. Flax commends the practice of “respectful engagement” (1995: 508) as “more congruent with a commitment to justice; it treats others as persons deserving of respect and capable of exercising authority in their own lives and those of others” (ibid.: 504).8 Flax’s comments about the value of conversation point also to something that Okin, in her focus on what oppressed women will or will not say about their situation, overlooks. Conversation enables us to see ourselves from the perspectives of others, for what matters is not simply what others say about themselves, but also what they say about us (ibid.: 504, 507). Flax clearly thinks that she offers a more equal, respectful and reciprocal approach to justice than that expounded by Okin. But Okin and Flax seem again to be talking past one another on the topic of respecting those who suffer injustice. They share a concern with equality and respect but seek to realize it in different ways, and here Okin’s liberalism is an important source of their divergence. Flax seems to think that Okin is robbing women of their dignity by emphasizing the injustices that befall them, relegating them to the status of mute victims by proposing that others speak out on their behalf. Okin, by contrast, draws attention to these injustices as a way of acknowledging the dignity of those burdened by them, for it depicts them as individuals who deserve, even if they do not demand, justice. Drawing attention to the massive injustices under which a person labours is not intended to cast him or her as an intrinsically or inescapably helpless victim: it is, on the contrary, underpinned by a belief that the situation is an assault on their equality and dignity. Okin’s approach denaturalizes oppression by portraying things such as women’s asymmetrical contribution to and receipt from the household as an injustice that should be redressed. So while both Okin and Flax care deeply about respecting the equality of women, they have different assessments about how to enact this. Okin and Flax’s different views on how to respect equality are accompanied by different views about solidarity. Okin does not think that committed outsiders being willing to speak on behalf of oppressed people must be an expression of neocolonialism or necessarily emanate from a position of patronizing superiority. Being willing to point out injustices suffered by another seems, for Okin, to be a mark of respect, for underwriting such 110

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criticism is a belief that the individual so burdened is entitled to more and better. Flax, by contrast, seems to think that one can never speak on behalf of another without violating their agency and that the struggle for justice can be waged only by the direct recipients of the injustices. She thus seems to place First World women in the invidious position of being implicated in the poverty of those in the Third World but unable to offer any assistance in articulating or remediating their problems. Alternatively, it might be that Flax does not rule out the possibility of support altogether; perhaps she just maintains that any support must post-date dialogue. There is one dimension of this debate where Okin and Flax do understand one another and simply disagree. As we have seen, Flax upbraids Okin for neglecting power relations among women, deeming them to be equally important to relations of domination between men and women. Okin rejects this, at least when applied to the situation of women in poorer countries, maintaining that “some of the most oppressive and constraining practices inflicted on [them] have a lot more to do with their fathers’ or their husbands’ perceived needs and desires than with mine or Flax’s” (1995a: 515 n.1).9 Okin’s refusal to address the issue of power relations among women is one of the things Jaggar (2009: 176) finds unsatisfactory about her reply to Flax, and this is one of the issues in the intersectionality literature that she seems unwilling to engage at any length. She cleaves to a position closer to radical feminism by emphasizing women’s subordination to men. Okin’s comparison of the situation of women in wealthier and poorer countries also says nothing about the self-understandings of either group. Her failure to consider women’s self-interpretations once again hampers her ability to respond to some of the concerns of the intersectionality literature. The previous chapter’s conclusion concerning MBW applies here too: Okin does not engage in a careful or thorough way with this vitally important component of the intersectionality debate. This makes it easier to see why critics such as Flax accuse her of turning “other women” into objects, rather than subjects, in the debate.

3. SELF-INTERPRETATIONS, SOLIDARITY, SOCIAL CRITICISM

Notwithstanding Okin’s neglect of this issue, the previous chapter argued that attention to women’s diverse self-interpretations should find a place in her theoretical apparatus for three reasons: (i) the value of including selfinterpretations among empirical data; (ii) Okin’s own definition of feminism as centrally concerned with such self-understandings; and (iii) the wider concern of her feminist liberalism to engender in women a view of themselves as ends in themselves. This general claim is borne out by some of her encounters 111

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with feminism and cultural difference after “Gender Inequality and Cultural Differences”. In “Feminism, Women’s Human Rights, and Cultural Differences” (1998c), for example, Okin argues that when women from different countries come together to speak about their situations, many commonalities surface, including: gender-based discrimination; gender-based violence; sexual and economic exploitation; neglect of their rights in the private sphere; the ways in which some laws and customs regarding marriage, divorce and child custody disadvantage women; and the undervaluing of women’s work in the household and in the cash economy (Okin 1998c: 44–5). Several of the parallels between women’s positions in wealthier and poorer countries stipulated in Okin’s 1994 article are presented here as emerging inductively when women from around the world engage in conversation to compare and contrast their experiences (ibid.: 45). Okin notes the irony of the fact that as the women’s rights as human rights movement was uncovering such commonalities, “many Western academic feminists were shrinking from making statements about women and gender and regarding ‘patriarchy’ as an outdated overgeneralization” (ibid.: 44). Okin’s increased attention to women’s self-interpretations is also evident in “Feminist Social Criticism and the International Movement for Women’s Rights as Human Rights”, co-authored with Brooke Ackerly. Okin and Ackerly argue that the movement to portray women’s rights as human rights was a grass-roots one, arising from women around the world talking about their problems and realizing that traditional conceptions of human rights were insufficient to address these (1999: 143, 147, 155; cf. Okin 2005c: 87). Rather than abandon human rights discourse altogether, they portray the rights that women need – rights against violence in the private sphere, for example – as integral parts of the human rights package. Once again, when women from different countries came together to speak for themselves and to one another, through the mediation of non-governmental organizations, many similarities in their situations appear along with differences (Okin & Ackerly 1999: 144, 146; cf. Okin 2005c: 83). Thus, while Okin largely neglects the issue of self-interpretations in the article that so incited Flax, she is able to retrospectively validate many of its conclusions when she does take account of the self-understandings of some of the women in these contexts. The importance of engaging with the self-understandings of those subject to injustice is powerfully evident in “Poverty, Well-Being and Gender: What Counts, Who’s Heard” (2003). Reviewing three works about development, Okin proposes that one way of measuring their value is to compare what each says about development and justice with what people in the least developed countries say about themselves and their needs. “‘Listening to the silent voices,’ as Ackerly’s theory urges, provides an invaluable point of reference for scholars contributing to a more expansive, human concept of development” (Okin 2003: 280; cf. 289, 298, 301).10 Okin criticizes Nussbaum’s failure 112

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to let her subjects speak for themselves (ibid.: 295–7), especially given that her approach is supposed to be based on dialogue with them. Okin recounts at some length the findings of the Platform for Action of the UN’s Fourth World Conference on Women, held in Beijing, and the first two volumes of the World Bank’s Voices of the Poor: “Each provides substantial evidence of what women in the less developed world themselves rank as their own highest priorities” (2003: 301). Summarizing the World Bank material on the views of extremely poor people, she records that: They want to be able only to earn or to produce, without exploitation, enough to live on and to raise their children. They want their children to be educated – at least, literate and productive – and they want the prevention or treatment of their own and their children’s readily preventable or treatable diseases. They want time – to participate in the events of their communities, to pray, and to rest, and restore themselves for work. They want to be able to participate in the collective life of their society without shame or humiliation, and they want much more control over what happens in their communities that directly affects their lives … poor people want what economically better off people take for granted most of the time. They want to be able to live free from hunger, thirst, exposure to the weather, ill health, humiliation, and fear. (Ibid.: 309–10) Four things emerge from Okin’s review article that pertain to some of the issues in this chapter. First, she chides development economists for having too long ignored women’s agency and well-being (ibid.: 280), which suggests that in so far as her discussions of women neglect their agency, she is culpable by her own standards. Second, she is correct to have claimed that poor people lack a sense of power and efficacy: “they suffer from the lack of voice, power, and independence. They speak repeatedly of not being listened to or of having no influence on or control over events around them” (ibid.: 307). Yet this passage both challenges and affirms some of Okin’s views. On the one hand, representing those who suffer profound injustice as subject to forces beyond their control is not remote from own self-understandings. Her worries about adaptive preferences suggested that powerless people become reconciled to their powerlessness, but the material discussed in this review shows otherwise. The fear that they become reconciled to their powerlessness is unfounded: their ability to complain about it presupposes their belief that their lack of power is neither natural nor acceptable. The discussants identify and resent “the humiliation of being exposed to exploitation and to rude and inhumane treatment … of being beholden to others for fulfilment of their daily needs” (ibid.: 307). 113

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Third, Okin’s point about women in poorer countries being burdened by an unequal division of domestic labour is vindicated. She reports that: As men become unemployed and women become employed, men have not – except in a small minority of cases – taken up the family’s domestic work. Thus women, carrying two burdens and sometimes three (since women do most unpaid community work) are particularly stressed by lack of time and energy. Women often have time for nothing but work and tending others. (Ibid.: 309) In suggesting that the unequal division of domestic labour is something that the women burdened by it lament, this passage also goes some way towards responding to Mohanty’s concern that some First World feminists simply assume a similarity of meaning to women’s situations, disregarding local context and the possibility of the “same” phenomenon having different meanings for those who live them. In this case, both the phenomenon and its meaning – or at least a major part of its meaning – manifest themselves in the poorest countries. Finally, in connection with Flax’s point about conversation illuminating not just the other party but also oneself, the views of the poor reported here include very little about wealthier people. Respondents are preoccupied with their own pressing concerns and fulfilment of their basic needs (cf. Okin 2005c: 88). In their remarks, however, Okin detects “at least implicitly, criticism of the ways in which all of those with power and comparative wealth have participated in and profited from global inequality and poverty or at least allowed them, by their inaction, not only to continue unabated but to grow worse” (2003: 310). She does not specify whether “those with power and comparative wealth” are the poor’s compatriots or people across the globe, but if this category includes the latter its reference to inaction suggests that poor people would seek support from those not similarly burdened. Thus Okin’s earlier claim about the need for “outsiders” to speak and act in solidarity with those suffering from injustice might not be so far from what those struggling with poverty themselves seek. This returns us to the wider question of social criticism, which is another issue Okin revisits in writings published after her exchange with Flax. As we have seen, in the article that prompted their exchange, Okin suggests that one tool for dealing with the problem of those whose oppression has diminished their expectations for justice is to have “committed outsiders” serve as social critics on their behalf. By championing the image of the committed outsider, Okin is effectively endorsing what Walzer calls asocial criticism. Replying to Flax, Okin refers briefly to the idea of women who are both inside and outside a culture being highly effective critics of that culture, for 114

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they combine deep, local knowledge with an ability to take some distance from the culture’s practices and values that comes from experiencing life in another culture (1995a: 515–16 n.2). This hybrid model of social criticism is more fully endorsed in later writings, with Okin claiming that some of the best feminist social critics are “inside-outside critics” (1998c: 46; 1998d). Sufficiently steeped in a culture and social context to possess a real depth of knowledge of it, such figures can also attain some critical distance (cf. 1998d; Okin & Ackerly 1999: 139).11 But Okin is adamant that there is no single route to effective social criticism: one might leave one’s culture of origin but remain uncritical of it; one might never leave one’s birthplace but develop radical criticism of one’s culture; one can come from the outside and, like an anthropologist, acquire deep local knowledge (1998c: 46–8). She thus reaffirms the idea of outsiders being legitimate social critics, so long as they have acquired a good knowledge of that particular society, have been “thorough and careful” in “listening and learning” (ibid.: 47).12 Her remarks dovetail with Walzer’s insistence that “The outsider can become a social critic only if he manages to get himself inside, enters imaginatively into local practices and arrangements” (1987: 39). Walzer is not suggesting that connected criticism is the only viable form of social criticism; it is just his preferred model. Over time, Okin seems to recognize the advantages of connected criticism, although nowhere does she, to my knowledge, depict it in quite this way nor acknowledge how her own shifting position intersects with Walzer’s. Okin also reminds us that such support from outside voices is sometimes sought by women in Third World countries themselves (1998c: 48). This echoes her point above about the role of solidarity in relations between women in wealthier and poorer countries but puts it on a new footing: such support is now presented as actively requested by Third World women themselves. She thus continues to believe that informed outsiders can be legitimate and collaborative critics of injustices in non-Western societies without this smacking of neocolonialism. Indeed, with Ackerly she holds that this is not just possible but imperative, writing that: it is incumbent upon Western feminists to challenge patriarchy in the variety of ways it afflicts the cultures in which women live, in ways that are free of imperialist tone or content. In appropriate cases, this includes giving various kinds of support to women who challenge patriarchy in their own cultures. (Okin & Ackerly 1999: 149) It is hard to know whether Flax would condemn this sort of speaking with, rather than on behalf of, Third World women. As mooted above, she might not rule out the possibility of support altogether, but would insist that it 115

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post-date dialogue. Much would seem to depend on the attitudes and dispositions of the wealthier, more privileged women and whether they saw themselves as teaching, or learning from, less privileged women in the exchange.

4. BACK TO MBW

This chapter’s attempt to track what happens when Okin’s feminism goes global yields the conclusion that as her engagement with contexts where shared liberal meanings could not be assumed deepens, she grows more attentive to women’s self-interpretations (cf. Wingrove 2009: 65).13 This development seems, moreover, to have fed back into her approach to group rights within liberal societies.14 Some evidence for this emerges from her retrospective statements about the intentions and implications of her original interventions in this debate. In the posthumously published “Multiculturalism and Feminism: No Simple Questions, No Simple Answers”, Okin points out that her original argument suggested that those best placed to answer the question of whether group rights are bad for women are the women “at the intersection of the issue – those within whatever minority cultural or religious groups are claiming group rights” (2005b: 72). She emphasizes that “it is so important that the relevant women be involved in the attempt to design the form of multiculturalism that is most likely to benefit and least likely to harm them” (ibid.: 73). She adds that “Whether their views are heterogeneous or homogeneous, singular or multiple, consulting with them seems essential … female members of a relatively patriarchal minority group must be included in discussions” (ibid.: 74; cf. 76; 2005c: 91). When talking about people internalizing their subordination, she concedes that “one is surely more likely to find out about and to understand the actual conditions of what seems to be oppression by consulting the people who seem to be oppressed” (2005b: 88). This is a departure from her previous presumption that adaptive preferences could inure those subject to injustice to those injustices. In general, the previous chapter’s conclusion that attention to self-interpretations should be part of Okin’s feminist liberalism meshes with her later, more explicit claims about how to approach gender and cultural diversity. Incorporating the self-interpretations of the women involved also reduces the political and normative distance between Okin and feminist theorists of multiculturalism who advocate a deliberative approach, such as Benhabib, Song and Deveaux.15 Just how far Okin is willing to follow where such deliberation leads becomes apparent in her conclusion that when female members of minority groups that have been or continue to be subject to state oppression are “consulted in truly non-intimidating settings” and “produce good reasons for preferring to continue aspects of their traditional subordinate 116

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status over moving to a status of immediate equality within their group” (2005b: 87), their wishes should be respected. This could seem like a surprising conclusion for a feminist liberal like Okin, given the direction in which both strands of her hybrid philosophy would seem to push. She contends that “a state that values liberalism above all would have no more need to consult with slaves before it insisted upon their emancipation” (ibid.: 86). But the comparison of the sort of group rights defended by liberals to the fundamental rights that preclude slavery does not withstand scrutiny. As we have seen (Chapter 5, §1) these defences presuppose that the group is internally liberal. With regard to her feminism, Okin numbers herself among those who “tend to favour women’s rights to be treated as equals over groups’ or people’s rights to preserve and promote their cultures in cases where the two conflict” (2005b: 91; cf. 92). However, as we have seen from Chapters 2 and 3, Okin herself argued, well before entering the turbulent waters of the group-rights debate, that women wanting to participate in traditional, gender-structured households should be free to do so, if this amounted to a genuine choice on their part. Her ultimate position on women in minority groups represents a version of her feminist liberalism’s regard for free individual choice and the pluralism this generates. As she said in MBW, women “should have the opportunity to live as fulfilling and as freely chosen lives as men can” (MBW: 10). If women who are able to choose have “good reasons for preferring to continue aspects of their traditional subordinate status” (2005b: 87), then a feminist liberal like Okin must accept this.

5. CONCLUSION

At the time of her death, Okin was “expanding on her recent writing about gender, economic-development theories and policies, and women’s human rights in the late twentieth century”.16 It is hard to predict what form her feminist liberalism would have taken as it became more global. Although she has no doubt that feminism in some form has global relevance, Okin anticipated, as noted above, that it will “take forms not easily predictable from Western experience” (Okin & Mansbridge 1993: 285). Yet she detects some evidence of liberalism’s promise for feminism on a global scale in the women’s rights as human rights movement. Discussing this in a number of places (Okin 1998c,d, 2003, 2005c; Okin & Ackerly 1999), she comments on the way this grass-roots movement has reconfigured human rights away from their original masculine model to make them more inclusive of women’s needs and experiences (1998c: 34–5). Human rights “must be reconceptualised in crucial ways if they are to address the multiple and serious ways in which the rights of women are violated because they are women” (Okin 2005c: 83; cf. 1998d). Many of the 117

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long-standing themes of Okin’s feminist liberalism manifest themselves in the women’s rights as human rights movement. This movement challenges the traditional idea of the rights bearer as the masculine head of a household and strives to make human rights more truly individual possessions (1998c: 34; 1998d; 2005c: 90). Because it has often served to conceal the ways in which women’s rights are violated in the household, the public–private dichotomy needs to continue to be carefully interrogated (Okin 1998c: 36; 1998d; 2005c: 86–7; Okin & Ackerly 1999: 155). Rights must be available not just against the state but also to protect individuals from one another, including family members (Okin 1998c: 35–6; 2005c: 85–7; Okin & Ackerly 1999: 141–2). More generally, Okin and Ackerly find that: most strands of international feminism have, in the last, crucial decade, coalesced around a single guiding criterion: the basic feminist premise that all human beings, female and male, are of equal worth and are therefore equally worthy of dignity and respect. (Okin & Ackerly 1999: 136; cf. 137, 140–41, 144, 157) This basic feminist premise is also a basic tenet of liberalism. Okin and Ackerly acknowledge, however, that the precise meaning of this fundamental commitment to equal personhood can vary with context and culture (ibid.: 136). Okin’s recognition that equal moral personhood takes on different meanings in different contexts and her responsiveness to liberal elements in global feminist activism are both evident in her claim that: Activists for women’s human rights share the aim of reconciling women’s full equality with men … while recognizing the centrality of religion or culture in defining most women’s identities and deeply held values. They hope to increase women’s senses of entitlement to treatment as full human beings without undermining their most fundamental senses of who they are. (1998d) Okin does not, therefore, posit an a priori universal feminist liberalism. Rather than assume that liberalism is relevant to feminist action around the globe, she responds to the liberal elements manifesting themselves in this. As Chapters 9–11 illustrate, Nussbaum articulates a more fully developed form of international feminist liberalism. There are both differences and similarities between her position and some of Okin’s remarks on the situation of women globally. However, before moving on to Nussbaum’s work, it is necessary to consider another form of feminist liberalism: that articulated by Hampton.

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II. THE FEMINIST LIBERALISM OF JEAN HAMPTON

7. CONTRACTING FOR FEMINISM

[L]iberalism has usually been conceived as a theory addressing how to deal with the abusiveness of state authority and power and has not been developed so as to recognize or deal with abusiveness generated by other social institutions. (Hampton 1997a: 193) When she died in 1996 at the age of forty-two, Jean Hampton left behind a substantial body of work, comprising two monographs, one co-authored book, an unfinished manuscript that would be published posthumously1 and many articles. Not all of her oeuvre concerned feminism however, so these chapters confine themselves to those components that do. The separate, but interesting, question of how Hampton’s feminist liberalism informs, is informed by or comports with the positions outlined in her other writings on topics such as jurisprudence is not examined here.2 This chapter begins with Hampton’s best-known feminist writing, “Feminist Contractarianism” (FC). It goes on to consider her relation to the ethic of care, portraying her use of the contract device as a way of making the ethic of care more consistently and robustly caring. The next section argues, however, that the contractarian apparatus is not essential for Hampton’s purposes: the real normative and theoretical work is done by her belief in the intrinsic worth of each person that should be respected in most human association.

1. FEMINIST CONTRACTARIANISM

Much of Hampton’s work as a political thinker concerns the social contract tradition in Western political thought; indeed, her first publication was a close interrogation of the extent to which Rawls’s theory of justice contains or requires the idea of a social contract. She concludes that the contract idea serves no theoretical purpose but functions as a metaphor only. After all, the 120

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parties in the OP do not have competing preferences, do not disagree over anything and do not compromise or bargain to arrive at any particular outcome (Hampton 1980: 326). For the two principles of justice to be generated, moreover, multiple parties are not even required (ibid.: 334, 337): all that matters is that a person in the OP can think on behalf of other members of society; can take their interests into account; can imagine what sort of society would qualify as just from any social location, especially that of the least advantaged (ibid.: 335; cf. 1997a: 141–3). Although redundant to his theorizing about justice, Hampton speculates that Rawls “must have liked the way the contract imagery conveyed how the two principles acknowledge each person’s free and equal nature, and thus, how it helped him argue that his conception is different from and preferable to Utilitarianism” (1980: 334–5). The image of the contract thus serves as a shorthand for certain beliefs about the nature and value of human beings. Rawls is, by implication, an accidental contractarian. “Feminist Contractarianism”3 was Hampton’s first explicitly feminist work and examines whether the social contract tradition in which she is immersed can serve feminist purposes. Hampton is the first to acknowledge that feminist contractarianism seems, prima facie, an unusual fusion given the association, among feminists at least, of the social contract tradition with self-interested, independent, bounded individuals coming together to draw up rational, abstract, impartial rules for their mutual interaction, cooperation and non-interference (FC: 1, 9). Hampton quotes a well-known feminist critic of the social contract, Virginia Held, who charges this model of social relations with overlooking or discounting “in very fundamental ways the experience of women” (Held 1987: 113, cited in FC: 9).4 Hampton is also well aware of the feminist insistence “that any adequate moral theory must take into account our emotion-based connections with others and the fact that we are socially defined beings” (FC: 11). Embarking, therefore, with full knowledge of, and some sympathy with, feminist reservations about the contract tradition, Hampton sets out to demonstrate that this style of thinking “holds out the promise of delivering a moral theory that will answer to … [her] feminist commitments” (FC: 2). The first crucial move Hampton makes is to decree that all manner of human connection – from citizenship to the most intimate, face-to-face relationships – can be illuminated with the contract device. To hold that contractarian thinking cannot profitably be applied to personal relationships is to remain within the grip of the public–private separation (FC: 20). This is not to say that all human relationships can be reduced to contracts: Hampton is careful not to deny the richness and variety of such relationships (FC: 38) and explicitly excludes profoundly and enduringly asymmetrical relationships from her framework. Nor is she saying that the contract device provides the 121

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only perspective we should take on personal relationships. Rather, she offers this as one helpful lens through which to view many human relationships. In order to be considered “morally healthy and respectable” any human relationship should have distributive justice as its hallmark (FC: 2). What makes contractarian thinking such an all-purpose approach to scrutinizing relationships is that it allows us to measure a relationship’s degree of distributive justice. The contract mechanism encourages each individual to take some distance from the relationship he or she is involved in and to ask whether it could reasonably and freely be affirmed by all parties. Could self-interest sustain the relationship? If not, how much self-interest must be suppressed in order for the relationship, with its current distribution of benefits and burdens, to continue (FC: 21)? Hampton is not suggesting that self-interest could or should sustain all personal relationships: she is proposing a thought experiment to evaluate the distribution of a relationship’s benefits and burdens. The costs and benefits are not emotions but activities of the type that are notionally shared in relationships.5 For familial relationships, these include things such as looking after dependents and the many chores involved in maintaining a household. If both adults in a household are in full-time paid employment, but one routinely does more domestic labour than the other, then exploitation is likely to be present (Hampton 1997a: 196; cf. Radzik 2005: 45). Among friends or those who do not cohabit, these activities can include arranging meetings, keeping in touch, planning joint holidays and so on (FC: 21–2, 30). If, for no reason such as more free time or more disposable income or fewer domestic responsibilities, one party to a long-distance relationship or friendship does all the travelling so that they can see one another, this would, prima facie, pose a question about the justice of the arrangement. Hampton appears, however, to retract, without acknowledgement, her claim that distributive justice “is inherent in any relationship that we regard as morally healthy and respectable” (FC: 2) when she volunteers that relationships between those who are radically unequal – such as care-giver and infant or someone irreparably dependent – should not be judged by this criterion. It is inappropriate to look for justice or its converse, exploitation, in such a relationship (FC: 21, 32–3). But even though distributive justice is necessarily absent from these relationships, Hampton cannot be denying that they can be “morally healthy and respectable” (FC: 2). There must, therefore, be important exceptions to her claim that distributive justice inheres in any relationship so described.6 We are forced to conclude that notwithstanding her claim, not all morally healthy relationships must be characterized by distributive justice.7 A necessary condition of justice in a relationship is the absence of exploitation (FC: 20). In intimate relationships, exploitation occurs when partner A 122

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is able to use the positive emotions felt towards him by partner B to get partner B to act in ways detrimental to partner B. As an example, Hampton offers the woman who for love of her family works very hard on its behalf despite getting little back from them (FC: 20–21). Should this pattern persist where one family member contributes a great deal to the group’s well-being while others, confident or complacent that her love will sustain this behaviour, fail to return contributions commensurate with their ability, then exploitation is present and they are failing to show due regard for her intrinsic worth as a human being. By requiring individuals to show respect commensurate with their ability, Hampton accommodates those children who are able to gradually increase their capacity for reciprocity towards the adults who care for them (FC: 21). In a situation where those who are able fail to contribute to the family, taking advantage instead of the good will and affection of another, exploitation exists, and respect for others and justice are lacking. Writing elsewhere on this theme, Hampton suggests that the contractarian thought experiment tests for the presence of domination in any relationship, while shortly after it tests for disrespect (1997a: 163). So it seems that the converse of justice can be described equally as exploitation, domination or disrespect. Although Hampton never clearly defines or distinguishes these terms, in light of her overall position, the best way to understand her claim is that the contract device tests for respect or its absence. As she says in one formulation: by using a thought experiment in which you consider whether you and your partner(s) in a relationship (either a personal relationship between you and another person or a political relationship between you and every other member of your state) would be able to agree on the current distribution of costs and benefits, you are testing for implicit disrespect in that relationship. (Ibid.: 164) An interesting question to arise from Hampton’s depiction of personal relationships that are marked by disrespect is whether the party subject to this needs to experience such treatment as disrespectful. For reasons outlined below, her answer is no. Indeed, this highlights one of the things that is so pernicious about exploitation in personal relationships, for it is only possible because of the exploited person’s positive emotions and affections towards the other(s), and perhaps even their sense of self being heavily invested in their caring role. A further interesting implication of Hampton’s account is therefore that persons thus exploited might (wittingly or not) be complicit in their exploitation by continuing to extend care, love, nurturance and support when others fail to reciprocate as appropriate. This suggests that for such exploitation to end, change is needed from both sides. Partner A 123

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needs to stop exploiting partner B, but partner B needs to stop making herself exploitable. Hampton urges women to “develop forms of thinking and acting that prevent their propensity to care from being the source of their abuse and exploitation” (FC: 30). She maintains that “the ability of a person to be appropriately self-concerned, and to develop interests and objectives is a moral matter … at the personal level, requiring certain kinds of choices from us; but it is also a social and political matter” (1997c: 49). She adds that “unless each of us takes responsibility for acknowledging value not only in others but also in ourselves, we will be in danger not only of harming others but also of harming ourselves” (ibid.: 51). It is worth noting here that Hampton (like Okin and Nussbaum) takes the female tendency to care to be an artefact of socialization rather than any biological impulse (1999b: 234) and acknowledges that men too can be self-sacrificing (and even self-harming) carers (Hampton 2007b: 54).8 Just as the party subject to disrespect need not experience their treatment as disrespectful, so, conversely, exploiters need not be doing this intentionally. Hampton does not say this directly, but it can be inferred from a number of her comments. She says, for example, that “exploitation can exist within a relationship when it evolves such that the distribution of nonaffective costs and benefits is unfair” (FC: 30). This suggests that motive to exploit is not a necessary condition of exploitation. She defines exploitation as relying “upon the affection or duty felt by another party to use that other party to her detriment” (FC: 20). While the verb “to use” here does sound calculating, the idea of relying on another’s affection or sense of duty seems to allow that this could just be an outcome of habit, of a person being unreflectively taken for granted. While Hampton would see this as morally culpable, it is not the same as intentionally exploiting a friend, familiar or intimate. So Hampton’s thought experiment can be used to expose the presence of exploitation or disrespect in a relationship in the absence of mens rea. Consider her example of children taking the things their parents do for them for granted. If they are exploiters, it is not by design nor is it their fault: “Unless they are encouraged to reciprocate the care they have received as they become able to do so, they are being allowed to exploit other human beings by taking advantage of their love for them” (ibid.: 21). Exploitation or disrespect can be an act of omission as much as commission.9 It seems that when identifying an exploitative situation, the intentions and understandings of the parties are not key, making it possible to be exploited without feeling this and to exploit someone without intent. Hampton even suggests that it is possible to feel exploited without being exploited: “feelings [of being used] are all too likely to be wrong, or exaggerated, or inappropriately weak for us to put full moral faith in them” (ibid.: 22). Indeed, if the interpretations of the actors in the situation were sufficient to identify the 124

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presence of exploitation or disrespect, the contractarian thought experiment would be unnecessary.

2. THE ETHIC OF CARE

Women’s propensity to care is at the centre of the ethic of care with its reminder of the important ethical work of care and the preservation of relationships, which tend to be ignored when moral reasoning focuses exclusively on justice. However, Hampton alerts feminists to a danger in the ethic of care, which is its possible valorization of self-sacrifice and even servility. In caring for others and paying so much attention to maintaining relationships, caring actors might neglect their own well-being: might fail to assert or even attend to their own interests and needs. If a woman’s sense of self or worth is too closely implicated in her caring role, she can become amenable to the sort of exploitation described above.10 Indeed, Hampton contends that both the justice and the care perspectives harbour a form of moral immaturity or incompletion. In focusing on what is due to each individual, the justice perspective can overlook the sort of compromise, generosity or supererogation needed to keep relationships going. In focusing on keeping relationships going, the care perspective can overlook what is needed by each individual: what sorts of claims can legitimately be made on others (Hampton 1996: 5–6). In this regard, then, the ethic of care conforms to much previous moral theory, for it emphasizes the other-regarding nature of moral action. However, previous moral theories take as their starting-point a moral agent possessing a sense of his own worth and entitlement, who needs to be exhorted to consider and help others (FC: 7). The ethic of care, by contrast, starts with a caring agent predisposed to take the needs, interests and perspectives of others into account, even at the risk of neglecting or understating her own. Some of Hampton’s interpreters take her to be critical of the practice as well as the ethic of care. Ruth Sample claims that Hampton does not place a high or moral value on care but sees it “as a burdensome social good” (2002: 261). Janice Richardson (2007b: 415) reads Hampton as opposing the ethic of care. Yet it is exploitation, not care, that disturbs Hampton. Care can be burdensome when one person’s propensity to care is taken advantage of by its beneficiaries. As Hampton later explains, “I do not mean to be hostile to the currently popular celebration by feminists of women’s persistent interest in caring. I only wish to put caring in its proper moral place” (2007b: 71 n.42).11 Rather than opposing the ethic of care, Hampton should be understood as agitating for its more consistent understanding and application. The carer must care for herself as well as for others, rather than simply denying or sacrificing her own needs and interests to pursue the well-being of others. A 125

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fully fledged ethic of care must be reflexive, promoting care of the self as well as others.12 Having agents care for themselves as well as others contributes to the health of relationships. Personal relationships in which all parties (who have the ability) respect their own and others’ intrinsic value and thus are unwilling to exploit or be exploited are, in Hampton’s estimation, healthier and more caring for all concerned. Her twin reminders to the ethic of care – about the need for self-care and for consideration of the quality of the relationship being preserved – appear in the following passage: [A] genuine moral agent has to have a good sense of her own moral claims if she is going to be a person at all and thus a real partner in a morally sound relationship. She must also have some sense of what it is to make a legitimate claim if she is to understand and respond to the legitimate claims of others and resist attempts to involve herself in relationships that will make her the mere servant of others’ desires. (FC: 7) Such scrutiny is a crucial ingredient for an ethic of care that was not simply, in Tronto’s term, “conservative”: that is, valuing relationships simply because they exist. As Tronto observes, “If the preservation of a web of relationships is the starting premise of an ethic of care, then there is little basis for critical reflection on whether those relationships are good, healthy, or worthy of preservation” (1987: 660). Given the history of women’s subordination in the public and domestic spheres, it is imperative to have a way of evaluating caring relationships and distinguishing those that are salutary for all concerned from those that are exploitative for the carer. This is where the contract device provides a useful antidote for feminist purposes, by bringing to light caring relationships that might be exploitative for the carer. This style of thinking requires each member of a relationship to assume their own worth and value as an individual, and to scrutinize the benefits and the burdens associated with the relationship from that standpoint. The contract mechanism encourages individuals to imagine themselves as beings of equal worth, deserving of respect, and to ask whether the distributions of benefits and burdens in the relationships they are currently in are the sorts of arrangements such a being could endorse. Hampton freely admits that her thought experiment poses questions rather than yielding clear and distinct answers: “Given the complexities of human circumstances, there is no formula applicable in all situations to decide the answer to this question” (FC: 35). No lexically ordered principles of justice arise from this, nor even anything approaching Okin’s desideratum of an equal division of domestic labour. Hampton’s focus on the question posed rather than the answer provided suggests that her primary concern in 126

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FC is consciousness-raising: the contractarian thought experiment encourages women to think about themselves as beings with intrinsic worth and to review their relationships, and their own behaviour, from this standpoint (cf. Richardson 2007a: 34, 49). However, Hampton’s thought experiment promotes such a perspective on the relationship from the standpoint of all participants, so that no individual is encouraged to look at it from a purely selfish or self-interested point of view. One has to be attentive not just to one’s own intrinsic worth, but also that of others (FC: 23, 26–7). The contractor is therefore prompted to investigate what all parties to the relationship give and get and to consider whether all could affirm its allocation of burdens and benefits were it not for the affective ties binding them together. This encourages those who might have unwittingly or unreflectively exploited loved ones to recognize and desist from this. Looking out for one’s own and others’ intrinsic value thus becomes Hampton’s preferred model of care, at least in relationships not marked by enduring asymmetry. Justice and care are complementary goods in (most) personal relationships. Making justice a prerequisite for (most) salutary caring relationships in this way could imply that Hampton is striving for a synthesis of the ethics of justice and care.13 But this would be incorrect. As indicated above, Hampton uses the term “justice” in a loose, general way to signify the absence of domination, exploitation or disrespect. In a positive sense, justice requires at least the recognition of each person’s intrinsic worth. Yet this is not all the ethic of justice stands for, as Gilligan depicts it. As Hampton’s characterization of Jake reminds us, the ethic of justice is a form of moral reasoning that is abstract, universalist, individualistic, mathematical, rulebound, focused on rights rather than responsibilities and non-interventionist (ibid.: 3–5). As a practitioner of the ethic of justice, Jake is likely to be “insensitive to the needs of others” and not “to see himself as a fellow caretaker in a relationship” (ibid.: 5). While some of these features of the ethic of justice find their way into Hampton’s reworked conception of care, most do not. There is some universalism, in that all parties are encouraged to think of everyone as possessing intrinsic worth. There is some abstraction in the way people are invited to think about their relationships, but this is not highly advanced. It is far less exiguous than that of the Rawlsian OP, for example, for it does not ask the person to shed all knowledge of the features that particularize her nor to recuse herself from central relationships in her life. It does not ask her to make the emotions and affections accompanying these relationships the object of rational calculation. By having contractors reflect on the distribution of activities in the relationship, all Hampton’s thought experiment demands is that the person undertaking it assume some distance from her relationships to ask whether their burdens and benefits are compatible with acknowledgement of the intrinsic worth of all participants. 127

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But the sort of justice that Hampton invokes to leaven the ethic of care is not individualistic, negative, rule-bound, couched in the language of rights nor productive of actors who are insensitive to the needs of others or fail to see themselves as caretakers. For all these reasons, it seems more appropriate to interpret Hampton as making the ethic of care a more consistently and robustly caring ethic than as effecting any synthesis of Gilligan’s ethics of justice and care. This interpretation is buttressed by her statement that what “the voice of justice correctly captures” is “the fact that each of us has needs, aspirations and interests that genuinely matter” (1996: 15). She offers no endorsement of its many other features.

3. AN(OTHER) ACCIDENTAL CONTRACTARIAN

It has become commonplace in the social contract literature to distinguish contractarianism of the Hobbesian sort from Kantian contractualism. Hobbesian contractarianism focuses on self-interest and bargaining while Kantian contractualism emphasizes the generation of rules that respect the moral equality of the parties to the contract (Darwall 2003; Cudd 2007). Although Hampton (1991; FC: 8–19), distinguishes Hobbesian from Kantian approaches, she shows no signs of setting any store by the terminological distinction between contractarianism and contractualism. Instead she calls the Hobbesian and Kantian variants “two forms of contractarian theory” (FC: 8). Hobbesian contractarianism, with its emphasis on bargaining based on self-interest, acknowledges only the instrumental value of others, whereas a truly moral perspective sees others as ends in themselves. They are worthy of respect in their own right, even when we have no need of them or gain nothing from cooperating with them (FC: 11–13, 25). Yet Hampton’s feminist contractarianism is more Kantian than Hobbesian, for at its centre lies a conviction that humans have equal intrinsic value, which should be respected in most social interaction. Her contractarianism does, however, claim to retain the Hobbesian insistence that no individual let himself or herself become prey to another (FC: 29). As Hampton unpacks the Kantian aspects of her contractarianism, however, it transpires that the contract terminology is metaphorical only, performing no real normative work. The normative weight in her feminist contractarianism is borne by the ideal of humans seeing themselves, and all humans, as ends in themselves (cf. Richardson 2007a: 34; Pateman 2009: 189–90). These beliefs could be articulated without reference to contract theories. Of course it can be replied that the contract metaphor provides a shorthand for these beliefs; as Hampton admits, “it is because of its suggestiveness that philosophers like me have been persistently attracted to talk 128

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of contract and have used the term to label their theories” (FC: 25). Yet this explanation is incompatible with distinguishing two strands of contractarianism, for their existence renders the contract image inherently ambiguous. On the one hand, it could stand for Hobbesian self-interested bargainers treating one another instrumentally. Alternatively, it could represent Kantian moral reasoners regarding themselves and others as ends in themselves. Yet only the latter carry the belief about intrinsic worth that Hampton emphasizes. The contractarian tradition in the Hobbesian sense, is not, by Hampton’s own depiction, a shorthand for her belief in the intrinsic worth of each individual. Yet Hampton never acknowledges the way its inherent ambiguity compromises the contract’s value as a metaphor. Indeed, she persists in talking about contractarianism being freighted with the belief in the intrinsic worth of persons (FC: 23, 30), even while identifying two strands of this tradition, one of which permits people to be treated instrumentally. Although she never fully acknowledges the way its ambiguity discounts the contract’s value as a metaphor, Hampton does concede that in her case, too, the contractarian label might be superfluous: what is non-negotiable for her is the belief that each individual has equal intrinsic worth, which should be respected. Her insistence on the substantive moral views rather than the contract imagery for understanding her position explains my proposal that Hampton, too, is an accidental contractarian.14 Ultimately, she is committed to a form of moral and political thinking founded on a belief in the equal intrinsic worth of each individual. This worth needs to be recognized and respected by those who are capable of so doing, including each individual being aware of, and asserting, her own worth and concomitant entitlement not to be exploited by others. Hampton sees the individual’s insistence on not being exploited as the Hobbesian contribution to her style of contractarianism. But giving the Kantian component due prominence renders the Hobbesian contribution redundant. A fully fledged Kantian ideal of the kingdom of ends captures the need for individuals to see themselves as ends in themselves, because they see that all human beings are. The Kantian view “demands of each of us that we respect the dignity of others and of ourselves” (DWDR: 124). Hampton explains that “a Kantian theory of worth, which regards us all as ends-in-ourselves … insists that each of us is owed the same kind of respectful treatment as every other person by virtue of the fact that each of us has the same noninstrumental value” (1997c: 30; cf. 47). Reflexivity is built into the Kantian ideal of each person being an end in himself or herself, so that no Hobbesian contribution is needed to grant “each individual the ability to be his or her own advocate” (FC: 29). Along with proving superfluous, Hampton’s inclusion of a Hobbesian component to her feminist contractarianism could be responsible for a 129

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more serious problem with her argument. By encouraging the contractors to appraise their situation using the criterion of self-interest, Hampton misrepresents what really informs her views about justice, care and exploitation. As we have seen, she really cares about equal worth and respect for this, whereas introducing the motive of self-interest creates the possibility of others being seen as means to my ends (1993: 385). To reflect the epicentre of Hampton’s concern, the question her contractors should ask is not the one she formulates: could we accept this relationship with its attendant burdens and benefits “if it were the subject of an informed, unforced agreement in which we think of ourselves as motivated solely by self-interest” (FC: 21)?15 Rather, her contractors’ question should be: could we accept this if we think of ourselves as beings with intrinsic worth, whose worth warrants respect from all humans capable of extending it? Hampton believes that seeing oneself as a being of equal intrinsic worth, and demanding to be seen as such by others who are capable of this, would rule out unreciprocated sacrifice by revealing it to be unacceptable to both the sacrificer and its beneficiaries. The appeal to self-interest is unnecessary, misleading and could alienate some feminist (and other) readers.16 As Hampton points out, there are different beliefs about what invests humans with intrinsic worth and, confusingly, she associates all of them with Kant. First, value can be seen to inhere in the human capacity for reason and autonomy (2007d: 116–17). A second strand bases equal worth on humans being made in God’s image and likeness (DWDR: 127), and Hampton suggests that this is actually the source of Kant’s seemingly more limited view about value coming from rationality and autonomy (2007d: 117). In other places, however, she posits that personhood confers value, not rationality, autonomy, being made in God’s image or any other particular trait (1993: 386; 1997c: 47). Grounding value in this third way can also be associated with Kant, who “said we have worth simply insofar as we are human beings, and calls each of us an ‘end-in-himself ’” (2007d: 116–17). This association of intrinsic value with personhood, and the attribution of this position to Kant, becomes even clearer in Hampton’s assertion that on the Kantian view “it is not strength, power, intelligence, or skill that creates worth; it is our bare humanity, something possessed equally by the weakest and the strongest among us” (2007d: 141). This represents a third possible source of intrinsic worth, one that has a humanist basis like the first but which avoids the danger of excluding those who are not yet, no longer or will never be rational and autonomous. Given that many feminists would challenge the equation of human worth with rationality and autonomy, and given that many feminists and many liberals would worry about grounding their ethics in a contestable metaphysical view, this third, most inclusive conception of intrinsic worth, which associates it with the mere fact of personhood, with “bare humanity”, fits most comfortably with Hampton’s feminist liberalism. It is, therefore, this 130

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conception that is intended in references henceforth to her Kantian conception of (intrinsic equal human) worth. Identifying the Kantian epicentre of Hampton’s feminism also helps to explain her abrupt dismissal of Pateman’s work. As indicated in Chapter 1, Pateman is a leading feminist critic of the social contract tradition. Any attempt to defend feminist contractarianism would seem to have to come to terms with her insistence that “the feminist dream is continuously subverted by entanglement with contract” (Pateman 1988: 188). Instead, Hampton raises and promptly dispatches Pateman’s work on the grounds that a “universal market in bodies and services” (FC: 25) is no corollary of her concept of contract. Although Hampton does not express it in this way, she is effectively saying that her conception does not presume self-ownership, and thus does not rest on the power of contractors to alienate bodily capacities such as physical or mental labour, reproductive capacity or recreational sexual services. As she declares at the start of her brief encounter with Pateman, “the most important idea invoked by the [contract] image is the Kantian idea that people have intrinsic, noninstrumental value” (FC: 25). The implication seems to be that neither individuals nor their capacities can be reduced to mere means for the realization of others’ ends, leaving Pateman’s fears about the social contract unfounded. This reveals, once again, that “contract” is not a univocal term, and that what defines Hampton’s position is its Kantian conception of equal worth, not its contractarianism.17 Hampton’s insistence that humans have intrinsic value would also seem to disarm one of Held’s objections to contractual thinking, which is that it turns everything and everyone into a commodity. Held insists that “no person within a family should be a commodity to any other” (1987: 127). Hampton not only agrees with this but would extend this injunction to most human relationships, not just familial ones. Indeed, there are four additional ways in which Hampton escapes the charges Held levels at contractual thinking. Hampton’s emphasis on intrinsic worth gives expression to Held’s belief that “every member of a family is worthy of equal respect and consideration. Each person in a family is as important as a person as every other” (ibid.: 128). Second, Held complains that “Harmony, love, and cooperation cannot be broken down into individual benefits or burdens” (ibid.: 129) but, as we have seen, Hampton makes activities, not emotions, the object of this sort of calculation. It is precisely the absence of shared goods such as cooperation that her thought experiment can disclose. And if the harmony in a relationship is purchased only at the expense of one party repeatedly suppressing her views, desires or needs, it is not the sort of harmony that Held would champion, given her commitment to “equal respect and consideration”. The third of Held’s charges against the contractual model is its unsuitability for parent–child relationships (ibid.: 120). However, as we have seen, Hampton 131

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does not apply her model to radically unequal relationships. Writing of growing independence and individuation, Held freely admits that as a child grows, the relationship between him or her and the parent changes (ibid.: 130). Hampton’s point about expecting the child to show respect commensurate with its maturation is eminently compatible with this view. Finally, Hampton can accommodate Held’s belief that the parent–child relationship cannot be based on the sort of self-interest that underpins contractual exchanges (ibid.: 134) when we see her contractarianism as purely Kantian with its concern for equal respect and needing no dash of Hobbesian self-interest. Just how little theoretical or normative work the image of the contract does in Hampton’s feminist contractarianism is further illuminated by an essay published the year after FC, “Selflessness and the Loss of Self ” (SLS). This essay makes many of the same points as FC, sans the contractarian apparatus. SLS begins by echoing FC’s claim that theories of morality have typically valorized other-regarding action (SLS: 39–41, 69–71). Hampton’s concern throughout SLS is the danger this creates of encouraging people to take the needs, interests and perspectives of others into account while neglecting and even compromising their own. Again she engages the ethic of care as illustrative of this risk. She tries to temper other-regarding approaches to morality with the thesis that it can be immoral to neglect one’s self: “any ‘altruistic’ behavior is morally wrong when it prevents one from paying moral respect to oneself ” (SLS: 51). The corollary is that morality should sometimes champion self-regarding attitudes and actions. The challenge, as Hampton sees it, is “to develop a conception of morality that recognizes the importance of beneficent involvement in other’s lives, but which … [makes] the development of one’s self … a moral requirement” (SLS; cf. 69–70). My argument that the Hobbesian contribution to Hampton’s feminist contractarianism is superfluous because the Kantian ideal of the kingdom of ends captures the need for individuals to see themselves as ends in themselves is also borne out by SLS. The Kantian conception of worth conveys “a sense of our own inherent worthiness in a world of intrinsically valuable equals” (SLS: 53). Hampton tenders that “if this conception of our value is adopted, one must respect the value not only of others but also of oneself, and must therefore reject any roles, projects, or occupations which would be self-exploitative” (SLS: 52–3). Later she declares: “To treat all people equally does not mean giving everyone but oneself equal concern. Moral people do not put themselves to one side; they include themselves in the calculation and give themselves weight in the determination of the right action to take” (SLS: 70). No appeal to self-interest is required for the carer to include herself among those worthy of respect. SLS introduces the idea that relationships premised on the excessive selfsacrifice or self-denial by one of the parties can damage not just the self-denier 132

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but also those cared for: “‘selfless’ people … are in danger of losing the self they ought to be developing, and, as a result, may be indirectly harming the very people for whom they care” (SLS: 40; cf. 54). Here Hampton delves more deeply into the motivation some individuals might have for being excessively self-denying and speculates that this could be caused by their own dearth of goals and projects. Devoid of individual purposes, they seek to compensate for this through energetic service to others. When fuelled by such a lack of self, selflessness can suffocate the recipients of its service (SLS: 54). Although Hampton does not present it in this way, as this strand of her analysis continues she lends a Nietzschean twist to her portrayal of supposed selflessness, for despite the appearance of altruism, such actors are actually asserting their own interest in having a project, cause or activity. Unable to craft their own, they latch on to those of others. Hence the response that those who have been “helped” can have: that of having been robbed or imposed on, rather than benefited by such assistance (SLS: 54).18 FC and SLS are thus companion essays with complementary arguments, although the latter focuses more obviously on what theories of morality should identify and promote as moral.19 This latter concern was evident in FC’s engagement with the ethic of care, but SLS widens it to cover theories of morality in general. Both essays hold that exploited individuals can be complicit in their exploitation if their investment in caring for others leads them to neglect themselves (SLS: 40, 61–2). SLS underscores this in the case of overly self-denying parents, for by always putting their interests last, they convey to their children that they are ripe for exploitation (SLS: 53). Their children can hardly be blamed if they grow up believing that they do not need to take their parent’s interests and needs into consideration. And in SLS, as in FC, Hampton is clear that she is not ruling out service to others altogether. In good Kantian fashion, what matters is why it is undertaken: “Self-sacrifice cannot be commendable if it springs from self-abnegation” (SLS: 67). But when selflessness grows out of love, rather than the absence of a self, it is authentic and valuable: “To be commendable, one’s service to others must be performed in a way that fully recognizes one’s own worth and distinctiveness” (SLS: 66; cf. 62, 64; Kamm 1998: 242; Pateman 2009: 189). Given Kant’s own views on women, Kantian feminism might initially seem as oxymoronic as feminist contractarianism.20 It will therefore illuminate Hampton’s distinctive brand of feminist liberalism to look at what happens when her Kantian commitment to equal intrinsic worth is applied to a range of issues of central feminist concern.

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8. KANTIAN FEMINISM .

The previous chapter argued that the crucial feature of Hampton’s feminist liberalism is not a view of human interactions as contracts but her commitment to the Kantian belief in the equal intrinsic worth of all individuals. In Hampton’s estimation, feminism’s basic thrust has been to demand acknowledgement of women’s equal intrinsic worth (FC: 29). This chapter applies Hampton’s Kantian standpoint to a number of long-standing feminist concerns. It also considers what the abstraction and individualism of her liberalism mean for her feminism. It explores whether Hampton pays any attention to the problem of generalizing about women in the face of salient differences among them.

1. KANTIAN FEMINISM IN ACTION

What makes Hampton’s contractarianism feminist according to Sample (2002: 266) is its extension to relationships in the private sphere. In this sense, Hampton follows feminist critics of liberalism by interrogating the public– private (or public–domestic) separation. Invoking the contractarian test as a way of identifying exploitation, dominance, disrespect or injustice in personal relationships, she is in effect proposing that many of the same values apply to each realm. As Hampton declares, liberal arguments “require that all social arrangements, to be morally acceptable, must be morally acceptable from the individual standpoint” (1997a: 188). This suggests that if a value or practice threatens or transgresses liberal values, this creates a problem wherever it occurs. Pressure is placed on any strong normative separation between the public and domestic realms when Hampton uses traditionally liberal terminology to describe rape, spousal abuse and unfair divisions of domestic labour as “equality-denying and liberty-limiting social practices” (1996: 17; 1997a: 197). She warns that “unless this wrongness [of the subordinating use 134

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of sex] is addressed, it threatens the values of freedom and equality that are taken to be the hallmarks of liberal states such as ours” (DWDR: 152). While Hampton is not going so far as to say that there are no differences between the two spheres, the public–domestic distinction does not license the neglect or overriding of central liberal values such as liberty, equality and respect in the household. So Hampton challenges any normative public–domestic separation by holding that some of the same values should be active in public, and in most personal, relationships. She also challenges any public–domestic separation analytically by claiming that what happens in the public realm affects the household and vice versa. She concurs with liberalism’s feminist critics that the public–private separation has served to either mask or justify men’s power over women in the domestic sphere (1997a: 199, 202–3). She holds the liberal belief that government should stay out of the domestic sphere in the service of privacy and freedom to be partly responsible for women’s inequality: the “liberal reluctance to involve the state in personal relations has played an important role in allowing practices subordinating women to men not only to continue, but even to flourish” (1996: 18; cf. 1997a: 197–8, 202). Showing how the expectation that women will provide care for children (or other dependent family members) affects their involvement in the paid workforce is another way in which Hampton connects the public and domestic realms analytically. She effectively echoes Okin, observing that “women live in a society that is structured around the assumption that they will be the primary childcare providers” and points to the barriers this erects to their full and equal participation in the paid workforce (1996: 20; cf. 1997a: 201). Thus Hampton agrees with liberalism’s feminist critics that while the liberal tradition has nourished feminism by denouncing doctrines of natural subordination and proclaiming a belief in human equality, its adherence to the public–private separation has pushed in the opposite direction by concealing or legitimating gender inequality (1996: 18–20; 1997a: 198; Kamm 1998: 238). Linda Radzik, however, takes feminist contractarianism to have been formulated exclusively for personal relationships, concluding that it is “not well suited to detecting sources of injustice that come from the structure or operation of the larger social institutions” (2005: 52). Radzik asserts rather than argues this position but, if correct, it would be a blow to Hampton’s ambitions, for Hampton clearly thinks that feminist contractarianism provides a way of criticizing not just personal relationships but also social institutions that exploit, dominate or disrespect women: “this method enables us to conceive of both public and private relationships without exploitative servitude” (FC: 29; cf. 1997a: 164). This should be welcomed by feminists “as they pursue changes not merely in intimate relationships but in society at large” (FC: 30). 135

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It would, moreover, be curious if these wider social and political arrangements were not the object of Hampton’s contractarian critique because they are part of her explanation for women’s subordination: Women in this society are in trouble largely because society has defined roles for them to play in a variety of relationships that involve them bearing a disproportionately larger share of the costs and receiving a disproportionately smaller share of the benefits than others. (FC: 29) The domination, disrespect or exploitation that exists in personal relationships is not simply the fault of particular individuals, but the wider social background helps to explain and perpetuate this. As Hampton observes, women live “in a society that has attempted to deny” self-regard to many of them (1996: 16). She explains that “Under pressure to regard themselves as ‘lower’, women may well have trouble respecting themselves, and society’s interest in using them may result in their being socialized to care unduly for others” (ibid.: 15). Indeed, surveying the situation of women in liberal societies, Hampton makes the same point as Okin: that women’s attainment of political equality with men has not translated into their social equality (ibid.: 9, 17; 1997a: 197). While Hampton admires, and acknowledges herself as a beneficiary of, the struggles in the nineteenth and twentieth centuries for Western women’s political rights and representation and inclusion in institutions such as higher education (1996: 16; 1997a: 195), she also observes that: even in those western societies strongly influenced by feminist ideals men and women still play roles (and experience problems associated with those roles) within the family and within society that are not as far from traditional gendered roles (and traditional problems with those roles) as some feminists might have hoped. (1996: 9; cf. 1997a: 196) While Hampton does not deny biological differences between men and women’s reproductive capacities, these do not suffice to explain the inequalities in their social positions in contemporary liberal societies. Our “cultural and political practices and institutions” must be mobilized to explain these, and they need reshaping to “realize not only political but also social equality for women” (1996: 11; cf. 1997a: 197). Whereas FC focuses on women’s potential for exploitation and lack of regard for their intrinsic worth in their caring relationships and practices, in other writings Hampton extends her discussion to include women’s subjection to violence and other forms of discrimination. She thus raises a number 136

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of issues that have long been of concern to feminists, including domestic violence, the gender gap in pay rates and the fact that women are more likely than men to abandon or reduce paid work to assume familial caring responsibilities (1996: 9; 1997a: 196). Hampton credits feminism as a social and theoretical movement with encouraging “men and women to be committed to ending social systems and modes of thinking that … promote oppression and various forms of violence against women” (1996: 3). Echoing what has traditionally been categorized as a radical feminist position, she suggests that much of the violence against women in liberal societies is carried out because they are women: Women are the subject of so much violence in our society (from rape to spousal abuse to muggings) in part because they are women and hence in the view of their attackers less worthy of respect than men – and indeed the sort of person for whom significant disrespect is permissible. (1997a: 200) Also in accordance with what is typically taken to be a radical feminist view, Hampton interprets rape as transmitting to all women an image of their inferiority to men: The threat of rape, which leads women to watch where they go, whom they go with, and what they do, sends a message that women must beware of the power of men, that their reality is such that they can be used by men, and that unless they are with, or have, a male protector … they are vulnerable to male violence because they are lesser beings, with lesser value and lesser standing, than men. (1998: 31; cf. 41–2)1 Hampton’s essay “Defining Wrong and Defining Rape” (DWDR) echoes this claim that rape is not an exclusively one-to-one act, but sends a message to all women about inferior status and vulnerability. In her judgement: One of the most important aspects of rape as it occurs in our society is the way in which it is a moral injury to all women, not merely to the woman who experiences it, insofar as it is part of a pattern of response of many men toward many women that aims to establish their mastery qua male over a woman qua female. (DWDR: 135; cf. 134) DWDR advances a lengthy analysis of how this form of violence seeks to deny women’s intrinsic worth and further elucidates what Hampton means 137

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when she portrays humans as beings with such worth. When a man rapes a woman, whatever his motivation, the act represents an attempt to violate her intrinsic worth. The act itself, irrespective of the agent’s state of mind, communicates that he is master and she an object to be used for his purposes (DWDR: 135; 2007d: 133). Yet what rape attempts – the degradation of a person’s intrinsic worth – can never be achieved. Adherence to the Kantian conception of human worth commits Hampton to the belief that human value is not only intrinsic and equal but also “‘permanent’ in the sense that it cannot be degraded or lowered by any kind of action” (DWDR: 127; cf. 128). Whatever harm a rape might do, and however it is experienced by the person raped, it can never remove that person’s intrinsic value. A living person cannot have this value effaced (DWDR: 127–8).2 A person who feels that her human dignity has been degraded by rape is, therefore, on Hampton’s analysis, wrong (DWDR: 138). Her value might appear to have been degraded, which Hampton terms “diminishment” (DWDR: 128, 138, 143; 2007d: 123), but nothing any human can do can actually degrade it. The same applies to a woman failing, because of low self-esteem, to realize that rape is an attempt to deny her intrinsic worth (DWDR: 126–7).3 Low selfesteem can cause an under-reaction, with the person failing to experience this as an attempt to violate her dignity, or a person can overreact, believing that her dignity as a person has been destroyed. But both reactions are false to what for Hampton is the objective truth of the situation, which is that the rapist has attempted what can never be realized: the degradation of a person’s intrinsic worth. Thus when rape occurs an objective moral wrong has been done, regardless of the raped person’s response (ibid.: 126–7, 129, 133, 135).4 The fact that the rapist’s attempt to degrade the person’s intrinsic worth can never succeed does not mitigate the inherent wrongness of the attempt. The act is wrong because of what it expresses: a belief in one’s superiority over another human being, and the legitimacy of treating them as a means to one’s own ends rather than as an end in herself. This artificially lowers the victim’s worth, while artificially raising that of the perpetrator (ibid.: 131, 134; 2007d: 131). Given its deontological and abstract character, Hampton’s approach to rape appears more Kantian than feminist. The interpretations of those involved in the event – both rapist(s) and person raped – play no part in its meaning. She seems to allow no room for the claim from the intersectionality literature that for both (or all) parties involved, the meaning of rape can depend on particular features of the perpetrator(s) and the recipient. From this latter, more nuanced, perspective, there is no univocal message conveyed by the act of rape to a category of undifferentiated women. Rather, rape has more than a binary meaning: race, class, sexual orientation and other aspects of identity can be crucial elements in the way it is experienced. Rape is not, 138

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therefore, just about messages undifferentiated men send to undifferentiated women. If a white man rapes a black woman, is he sending that message to all women or only black women? If a black man rapes a black woman, is he sending that message to all women or only black women? If a man of any race rapes a lesbian woman, is he sending that message to all women or only those who reject men as sexual partners? Hampton’s analysis of rape as an attempted violation of the victim’s intrinsic worth need not lose its value in light of these questions, but she would have made a richer case had she considered them. Nor does Hampton afford any attention to same-sex rape. Presumably she would also see this as morally wrong because it attempts to diminish the other’s intrinsic worth. However, she would have to concede that same-sex rape emits a different message to a different audience than heterosexual rape. With its emphasis on sexual violence as a form of systemic gender domination, Hampton’s analysis of rape is, as intimated, much closer to that of radical feminism than might be expected from a feminist liberal account. Yet while it might not be limited by the methodological individualism that feminist liberalism is so often charged with, Hampton’s account would seem to be a clear case of a feminist liberal approach being unable to recognize differences among women (and men) because of its abstract character. The role of abstraction and individualism in Hampton’s feminism is taken up in more detail below, as is her capacity to respond to the intersectionality literature. For now, though, it is worth noting that, as with many of Okin’s writings, Hampton’s analysis does not operate at the level of the self-interpretations of any group of actors. Or, rather, self-interpretations are not her focus in the first instance, for Hampton would seem to hope that her abstract and deontological approach would feed back into actors’ self-interpretations. Insisting that rape is an attempt to violate a person’s intrinsic worth underscores its grave wrongness, both to those who do or would commit this act and to those who have been its recipients. However, by also insisting that attempts to violate a person’s intrinsic worth cannot succeed (at least while that person lives), Hampton must want to shape the self-interpretations of those who survive rape by assuring them that their value as a person has not been destroyed. In this regard, then, her discussion of rape resembles her discussion of feminist contractarianism, for both aspire to change the ways in which their readers understand themselves. Whether women’s exploitation takes the form of violence, discrimination in the workforce (including sexual harassment) or “denigration of their roles as mothers or wives”, in all cases an attempt is being made “to establish them as worth less than men” (1997a: 200). Hampton’s Kantian feminism insists, by contrast, on each person’s intrinsic worth. This worth needs to be acknowledged not just in principle but in practice, and not just by individuals but 139

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also by institutions. Any and all social practices, arrangements and institutions that exploit women or see them as being primarily of service or use to others are liable for criticism and reform from this perspective (2007a: 30). The arena in which disrespect manifests itself is arbitrary from a moral point of view. Hampton’s feminist liberalism thus includes but moves beyond the traditional liberal preoccupation with the state “to recognize or deal with abusiveness generated by other social institutions” (1997a: 193).

2. ABSTRACTION AND INDIVIDUALISM

As indicated in Chapter 1, some feminists are troubled by the abstraction associated with the liberal method of social criticism, preferring critique that engages directly with the details and realities of oppression and inequality rather than conjuring abstract thought experiments about ideal societies. Fabulating disembodied and disengaged selves produces useless knowledge, shedding no light whatsoever on actual conditions and offering no practicable remedies for change.5 Hampton’s method for identifying and criticizing attitudes and practices that treat women unequally necessitates some degree of abstraction. Her feminist contractarianism, for example, invites participants in any relationship or institution to take some distance from their involvement and ask themselves, as per my revised formulation: could we accept this if we think of ourselves as beings with intrinsic worth, whose worth warrants respect from all those capable of extending it? Anticipating feminist resistance to the abstraction required by her method, Hampton replies that feminism itself presupposes some capacity for abstraction. Feminism believes its proponents to be capable of detaching themselves to some degree from the world in which they are immersed in order both to criticize it and to imagine a preferable future to work towards. Implicitly echoing Okin’s critique of Walzer, Hampton observes that feminists must “go beyond mere shared understandings, common beliefs, or social practices that may be oppressive or exploitative”. As she sees it, “to argue for their values, they must have an Archimedean point from which to survey and critically assess the value schemes in their societies” (FC: 16; cf. 1997a: 202–3; 1997b: 120–21; DWDR: 119; Kamm 1998: 240; Richardson 2007b: 419). Another way in which Hampton suggests that abstraction, rather than immersion in concrete realities, can further feminist goals appears in her belief that an inherently and resiliently valuable and equal sort of noumenal self persists behind both the actions and experiences of daily life and the agent’s perceptions of these. Such a self also stands as an ongoing source of resistance to, and critique of, social practices that try to degrade women. As she says, “no matter what evil people try to inflict on women, their equal 140

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value as human beings endures, so that it never becomes right to treat them as inferiors” (DWDR: 143). Sexist social meanings should never be mistaken for the truth about women: [I]t is wrong to conflate women’s … social degradation and inferiority … in a sexist society with their real and equal value as people – a value that is objective and something that society has an obligation to acknowledge, and a value that can never be degraded and that ought always to be acknowledged no matter what wrongs have been inflicted on them. (DWDR: 142–3, emphasis added) Feminist critics also hold that a more gender-equal future would be morally better than the sexist present, and that a society respecting men and women as moral equals is objectively truer than the current sexist one (Hampton 2007a: 14–16; 1997b: 120). Some support for Hampton’s claim appears when MacKinnon (2006: 11) condemns the “Convention on the Elimination of All Forms of Discrimination Against Women” for failing to declare that sexism is a lie and any belief in women’s natural inferiority false. In both these ways, then – the need to take some distance from the realities of the present in order to criticize them as oppressive or exploitative, and the belief that recognizing women’s equal intrinsic worth along with men’s is a step towards an objectively better moral and political universe – the abstractions of Hampton’s feminism are continuous with some other forms of feminist critique, or at least with their presuppositions, if not always their self-understandings. Feminism has helped Western societies come closer to the recognition of women’s worth by insisting that they are owed respect in all areas of their lives. Indeed, according to Hampton, it is only as women have come to be seen as beings with intrinsic worth that actions such as rape and domestic violence have shown up as wrongful (DWDR: 118–19, 134). Yet Hampton is the first (or perhaps, following Okin, the second) to admit that this idea of equal intrinsic worth is not fully incarnated in Western societies; persistent sexism, racism and other forms of exploitation testify to its incompletion (1989: 813; 1997b: 127; DWDR: 124–5). Nonetheless, the idea of – or rather, in Hampton’s view, the truth about – human beings’ intrinsic worth stands as a powerful rebuke to all manner of inegalitarian attitudes and practices (1997c: 51). Political philosophers have a vital role to play in reminding a society of its “obligation to acknowledge” (DWDR: 143) the intrinsic worth of all its members. Hampton believes that it is their responsibility to articulate and defend this truth (1989: 813–14; 1997b: 127), as she does in her own feminist (and other) writings. As we have seen, her position on rape tries to raise consciousness of this truth in two directions: to show that because women are beings worthy of respect it is wrong to disrespect them 141

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in this fundamental way, and that as beings with intrinsic worth, their worth cannot be degraded through wrongdoing. Moreover, while a person’s possession of intrinsic worth does not depend on their awareness of this, raising their awareness of their worth can be immensely empowering. Believing in one’s own worth means thinking of oneself as “someone who matters, whose talents are real, whose interests are important to satisfy, whose ideas and ambitions are something that others should take seriously” (1997c: 23). And this sense of self-worth has direct practical effects: “What actions one takes, what aims one develops, what ambitions one believes one is allowed to have, all depend upon the kind of worth one is prepared to accord oneself and others” (ibid.: 25). Another strand of feminist critique of liberalism’s abstract individualism has been its inability or unwillingness to conceive of humans as concrete, particular selves. This is well illustrated in one of Held’s complaints about the social contract tradition, which holds that “morality can never seem adequate if it offers no more than ideal rules for hypothetical situations: morality must connect with the actual context of real, particular others in need” (1987: 134). In “The Wisdom of the Egoist: The Moral and Political Implications of Valuing the Self ” (1997c), Hampton evinces some discomfort with this aspect of her Kantian heritage and tries to envisage a way in which her commitment to the equal intrinsic worth of all individuals can be reconciled with an appreciation of concrete, particular selves. She asks: can we construct a value-based moral theory so that it is more particularized in content and motive but still universal in scope, impartial in operation and egalitarian in its assumptions[?] … how to reconstruct moral theory so that it becomes genuinely personcentered, although in a universal and egalitarian way. (1997c: 36) Hampton adumbrates a moral position according to which people show respect for one another not out of obeisance to abstract universal moral principles, but because there is something about this particular person that commands respect. That feature is their intrinsic value. We thus extend respect because of something about the person, not because the moral law or abstract principles dictate it (ibid.: 35, 44, 47; cf. Kamm 1998: 244). She recommends a version of Kantian theory that: is “impersonal” in the sense that it mandates equally respectful treatment for all selves, but … “personal” in the sense that the mandate is coming from the fact that each is a self, so that it is this personhood or selfhood that is prescriptive with respect to our conduct. (1997c: 47–8)6 142

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A personalized Kantian approach, focusing on the imperative to treat each person as an end in himself or herself, obviously requires more work than Hampton gives it here, but for present purposes it is her attempt to make this style of moral thinking more personal and more grounded in interactions among particular selves that warrants attention, for it clearly indicates her wish to accommodate this strand of the feminist critique of abstraction. And while Hampton’s ambition to make her Kantian morality more attentive to singularity might seem like an attempt to square the circle, it represents what Jaggar identified as one of the challenges for feminist ethics, for it needs to develop “ways of thinking about moral subjects that are sensitive both to their concreteness, inevitable particularity and unique specificity … and to their intrinsic and common value, the ideal expressed in Enlightenment claims about common humanity, equality and impartiality” (1989: 100).7 It is also interesting to note Hampton’s tendency to introduce instances and characters from literature as she expounds her philosophical position. She draws, for example, on George Eliot, Charlotte Bronte, Zora Neale Hurston, Harper Lee, Shakespeare, Dostoyevsky and Milton. She does not, to my knowledge, make this link explicitly, nor even reflect on this aspect of her methodology, but her use of literary references is a way of manifesting sensitivity to context and the particularity of selves. Another common feminist criticism of liberalism has been its individualism. However, like that of the other feminist liberals studied in this book, Hampton’s individualism is moral, not ontological or methodological. Although she takes the equal intrinsic worth of each human being to be a moral truth, this does not lead her to think of individuals as atomistic or asocial. What the voice of care correctly captures is “the fact that each of us exists not as a disconnected soul, but within relationships that are necessary to both our survival and our flourishing” (1996: 15). She does not deny humans’ embeddedness in relationships, nor their sociality, finding “nothing in the contractarian conception of the person as I understand it that would deny our deep sociality as a species” (FC: 35). The importance she attributes to relationships is reflected in the design of her feminist contractarian thought experiment for, as noted in the previous chapter, it does not ask practitioners to disentangle themselves from their relationships. Hampton’s individualism does not lead her to underestimate the reality, the importance or the value of human connection. Hampton holds, moreover, that this charge of atomistic individualism has been laid unfairly at liberalism’s door, for liberals such as “Locke, Rousseau, Kant, and, in modern times, Rawls, Gauthier, and Feinberg, have insisted on the social nature of human beings” (1997a: 185; cf. 188–9). She contends that “liberal arguments start from the individual, not because they deny the sociality of human beings but because they require that all social 143

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arrangements, to be morally acceptable, must be morally acceptable from the individual standpoint” (ibid.: 188). Thus on the basis of her moral individualism, a question should be posed to any social structure, institution, practice or relationship as to which individuals it benefits and which ones it burdens and whether these distributions can be accepted by all the people receiving them. As this suggests, when Hampton declares that all social arrangements have to serve individuals rather than vice versa, she does not mean to reduce relationships to mere means to individual ends. Rather, she is saying that relationships at any level from the most personal to the largest political ones should be scrutinized according to this criterion: “moral and political policies must be justified with respect to, and answer the needs of, individuals rather than large-scale social groups, ethnic nations or other forms of community” (1993: 389). Individuals should not be automatically or involuntarily recruited to serve some greater good: instead, the greater good is only truly good if it respects each individual’s equal intrinsic worth. Asking of all relationships whether they respect the equal intrinsic worth of their participants is a useful yardstick for assessing their value and legitimacy. But this vantage point is not intended to deny the fact that individuals are always already embedded in a host of social institutions and practices. Rather, it is a thought experiment designed to gauge, and if necessary challenge, the legitimacy of those institutions and practices. Along with the other feminist liberals studied in this book, Hampton would agree that this sort of moral individualism serves women in particular, who for so long have been asked, encouraged or required to submerge or subordinate their interests and needs as individuals into some larger group, such as the family or the community. In this way, the moral individualism we find in Hampton and other feminist liberals has direct political implications.

3. INTERSECTIONALITY

The radical feminist objection to liberal individualism is, as we have seen, that it leaves liberalism blind to group membership and to the oppression that people can suffer (or privilege they can enjoy) on this basis. This critique of liberal individualism finds little traction when directed at Hampton, who generalizes frequently about women as a disrespected group. This was evident in her analysis of rape as recounted above. Yet while this might relieve her of the charge of methodological individualism, it generates a different kind of abstraction in her thought, a kind of abstract “groupism”. This in turn poses problems for her ability to accommodate the insights of the intersectionality literature regarding differences among women. Hampton generalizes freely and repeatedly about women with little attention to, or seeming awareness 144

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of, the extent to which differences among women mean that those generalizations require revision, qualification or abandonment. So here abstraction, rather than individualism, is the problem, for Hampton frequently refers to women as a group, removed from any awareness of how their differences from one another might affect the validity of her claims. While Hampton’s brief discussion of multiculturalism in liberal societies (1997a: 244–6) pays little attention to gender, differences among women are completely ignored. She writes in general terms about the problem of preserving a cultural tradition that denies “freedom or equality to some of its members” (ibid.: 246) and suggests that inegalitarian components of any cultural tradition warrant criticism from liberals. She is not proposing that the whole tradition be jettisoned, just its inegalitarian elements (ibid.). Her wider liberal awareness that “social groups can be as much the source of the abuse of individuals as they are the source of roles that contribute to their happiness” (ibid.: 189) would presumably make her initially wary of conferring group rights. According to Frances Kamm, Hampton “took the traditional liberal view that communities had rights only derivatively, if this was a way to express the equal worth of individuals” (1998: 238). Her aforementioned commitment to moral individualism would also sensitize her to whether group membership posed greater burdens and required greater sacrifices from some compared to others. In these general ways Hampton’s approach to group rights would seem to resemble that which Okin would articulate in the near future. It would, however, be hazardous to attribute any fuller feminist position on multiculturalism to Hampton on such a slender evidentiary basis. One of Hampton’s writings does, however, turn attention in an explicit and sustained way to differences among women and the extent to which her position dovetails with some of the intersectionality literature is striking. “Punishment, Feminism, and Political Identity: A Case Study in the Expressive Meaning of the Law” (1998) recounts her role as an expert witness in a Canadian debate about whether prisoners should retain the right to vote during incarceration. Although the overwhelming majority (97 per cent) of inmates, and many of their victims, are male, Hampton sees her unique contribution as stemming from its attention to female victims of violent acts perpetrated by men, for such women would otherwise be neglected as stakeholders in the debate. Again she echoes what is typically taken to be a radical feminist perspective, which is that violence against women is one, and perhaps the most important, tool in the oppression of all women, not just the individual female victims of rape, domestic violence and murder (1998: 31). Responding to the point that large swathes of the prison population are themselves victims of oppressive class and race relations, Hampton notes that their female victims are often also members of oppressed groups. Women members of disadvantaged minority communities are, moreover, 145

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very concerned about violence against them and against children in these communities (ibid.: 32). Whether their shared membership of oppressed groups makes such women sympathetic to or more forgiving of the male perpetrators of violence, it does mean that these women experience multiple forms of oppression, with being victims of crime, or the chronic fear of this, adding to the layers of their social subordination. As Hampton says, “There are cross-currents in the working of oppression, in part because those who are oppressed are not immune to the attractions of oppression against others” (ibid.: 33). So just as the intersectionality literature points to women’s different social locations according to factors such as race, class and ethnicity in order to complicate and pluralize the concept of gender, so Hampton reminds those attentive to race, class and ethnicity that gender must also be taken into account. Like Okin she underlines the importance of power differentials within minority groups, and insists that gender can be an important source of these, but like the intersectionality writers, she realizes the danger of generalizing about women, for some are multiply oppressed (ibid.). Any “single-focus emancipatory agenda”8 is inadequate “in a world where those who need emancipating are not all oppressed the same way, nor all innocent of oppressive strategies themselves” (ibid.: 34). Hampton also reflects on how multiple axes of oppression complicate political action. Women from disadvantaged minorities, for example, want, on the one hand, to participate in struggles with the male members of their community against subordination on the basis of race or ethnicity. But, on the other hand, they must battle these very allies as part of their quest for gender equality. Hampton has native women in mind when framing the problem, but it is relevant to women in other minority groups: [S]uch women [are] in the grim position of having to fight on two fronts, simultaneously trying to maintain an alliance with people that they must also, on certain occasions, oppose. Whereas women from dominant groups are lucky enough to have to fight only one battle (which is bad enough), these women have to fight two, and they … have to wage one of them partly against people that they would much rather be aligned with rather than against. (Ibid.) Here Hampton is far from gender essentialism, recognizing that women occupy different locations from one another in social hierarchies. Interestingly, some of the article’s later musings complicate Hampton’s observation that “women from dominant groups … have to fight only one battle” by suggesting that some members of dominant groups also face crosscutting loyalties. A white woman opposing racism, for example, might find 146

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that the people she loves are racists and have to be opposed.9 The conflicts created by these cross-currents are intensified by Hampton’s fertile admission that racist and sexist “others” are not just outside but also within: all individuals, no matter what their ethical and political commitments, can harbour strands of racist and sexist attitudes that must be combated (ibid.: 36; cf. Harris 1990: 608). Thus while Hampton seems, for the most part, to use an overly abstract conception of women as a group that is indifferent to difference, at moments like this the complexity and sensitivity of her work forces us to modify this charge. Hampton’s wider position on those from disadvantaged backgrounds who commit crimes is thus multifaceted. On the one hand, she depicts social disadvantages such as poverty as a way in which society fails to respect the equality and intrinsic worth of those thus disadvantaged: To permit children to grow up in situations where they are often in danger, where they often do not get enough to eat, where they are unable to get adequate health care, and where their schools are ineffective or worse, is to permit severe value diminishment. That this is permitted by our political system demonstrates that it often pays mere lip service to equality of worth, if it admits it at all. (2007d: 147–8) Indicating again that her individualism is moral rather than methodological, she has no wish to deny the sort of systematic disadvantage that members of some minority groups face. On the other hand, Hampton is sensitive to the need not to strip members of oppressed groups of all agency. This agency can take the form of resisting oppression, but it can also take the form of engaging in crime. As she says above, victims of oppression can also be agents of others’ oppression, and this should not be occluded by an exclusive focus on their oppression. In her estimation, any attempt to turn all such group members into victims rather than agents smacks of racism and neocolonialism (1998: 35, 42). She prefers an approach combining criticism of harmful systemic forces that disregard intrinsic worth with the requirement that individuals take some responsibility for their attitudes and actions (1997a: 207–8; 1997c: 49–51). Hampton’s recommendation to the Canadian inquiry was that because voting is part of membership in the political community, those who perpetrate crimes with political significance – such as rape or acts based on racism - should be disenfranchised during incarceration. Such acts betray a fundamental disrespect for fellow members of the political community (1998: 41– 2).10 She raises, but does not answer, the crucial question of how to distinguish crimes that carry political significance from those that do not (ibid.: 42). I find 147

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it hard to imagine a crime that could not be interpreted as conveying such disrespect. Tax avoidance, for example, could be an expression of disregard for the members of one’s political community, especially given that government revenue can be needed to foster liberty and equality for all. As suggested above, one way in which Hampton tempers the abstraction of her approach and manifests sensitivity to context and particularity is via her use of literary examples. “The Wisdom of the Egoist” emphasizes the necessity of believing oneself to be an individual with intrinsic worth and the difference it makes to think of oneself as “someone who matters, whose talents are real, whose interests are important to satisfy, whose ideas and ambitions are something that others should take seriously” (1997c: 23). Hampton draws from Jonah’s Gourd Vine by Zora Neale Hurston to recount a scene in which an African American woman (unnamed by Hampton) who knows she is dying exhorts her daughter Isie to maintain such a sense of her own worth. Yet the mother is acutely aware of the many pressures that will jeopardize this. One is Isie’s place in a family of males who see females as inferior. Her mother warns that neither her “paw nor dese older chillun is goin’ tuh be bothered too much wid you” (cited in ibid.: 22). But as Hampton points out, Isie’s membership of a racist society will also jeopardize her sense of selfworth (ibid.: 23). Use of this literary material subtly conveys not only Hampton’s belief in the widespread relevance and validity of this message about the importance of recognizing one’s own intrinsic worth but also her awareness that a sense of self-worth can be more difficult to achieve and maintain for those caught at the intersections of oppressive forces. She moves immediately from this to discuss the inflated sense of their own importance that boys in Victorian Britain acquired just because they were male, citing Mill’s On the Subjection of Women. This seamless transition from Hurston to Mill suggests that Hampton can attend to gender inequality without having to deny or ignore the relevance of race or class, for she qualifies Mill’s point about males’ sense of their own supremacy as applying to middle- and upper-class men only (ibid.: 24). This also suggests Hampton’s awareness that intersecting forces explain not just subordination but also privilege. Indeed, despite her attention to the ways in which women are encouraged to think of themselves as beings of secondary value, Hampton recognizes that social and political forces shape a person’s sense of their worth in myriad ways, not just gender. Race, religion and socioeconomic factors provide other examples: a white person, or a rich person, can believe that they are important simply because they are white or rich (1997c: 25–6, 49). She adds: To the extent that there are cross currents in a society’s value hierarchy, this will make the task of ranking harder: for example, 148

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if race and gender both matter, it may be hard to determine the relative ranking of two people, one of whom is from the lower ranked gender but the higher ranked race, and the other of whom is from the higher ranked gender but the lower ranked race. (Ibid.: 25)11 A question about Hampton’s feminism that remains unanswerable on the basis of the evidence available is how it would incorporate women in nonliberal societies. She holds that “Inegalitarian hierarchical conceptions of value have been commonplace throughout human history, whereas egalitarian conceptions have only gained popularity in modern times” (DWDR: 125). She sees the Kantian idea of equal intrinsic worth as rooted in the JudaeoChristian tradition and suggests that this, rather than its Kantian articulation, has made the idea influential in Western societies (DWDR: 124–5; 2007d: 117).12 However, even in Western societies, the idea of equal intrinsic value has not been universally acclaimed (DWDR: 124–5). This could presage a liberal triumphalism: although incomplete, liberal societies have come closest to recognizing the enduring truth about human beings, namely, that they have equal intrinsic worth. However, the evidence is too limited to predict which way Hampton’s work would have gone had she expanded her feminist liberalism beyond the confines of liberal societies. As Chapters 9–11 show, many of the themes of Hampton’s feminist liberalism resonate in the work of Nussbaum. Nussbaum shares Hampton’s interest in the Kantian legacy for feminism; she propounds moral but not ontological or methodological individualism; she is profoundly concerned with the ethic of care and the quality of intrafamilial relations. However one of the things that distinguishes Nussbaum’s feminist liberalism from that of Hampton and of Okin is that it has, from its inception, aspired to a global reach.

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III. THE FEMINIST LIBERALISM OF MARTHA NUSSBAUM

9. AN ORIGINAL POSITION

[O]ne of the greatest defects in American bourgeois feminism is … its failure (for the most part) to attend to the fact that a great many of the world’s women are at risk from hunger and disease, and many more labor (like many males) in conditions inimical to truly human functioning. (Nussbaum 1992b: 1019). Martha Nussbaum is a remarkably broad and prolific philosopher (cf. Harpham 2002). As is the case with Hampton, not all of her oeuvre directly concerns feminism.1 Because these chapters confine themselves to those of her works that do, their review of Nussbaum’s writings does not reach back before the 1990s, for most of her publications prior to that were devoted to ancient philosophy, with special reference to Aristotle. Her first book, The Fragility of Goodness: Luck and Ethics in Greek Tragedy and Philosophy, was published in 1986. She made forays in the 1970s and 1980s into the nexus between literature and moral philosophy, culminating in her 1990 work Love’s Knowledge: Essays on Philosophy and Literature. Nussbaum’s publication record suggests that her interest in feminism took a quantum leap with her involvement in the World Institute for Development Economics Research (WIDER).2 In 1993 she coedited, and contributed to, a book on development economics entitled The Quality of Life and two years later coedited, and contributed two chapters to, another WIDER volume on Women, Culture, and Development: A Study of Human Capabilities. Nussbaum’s first major feminist work, Sex and Social Justice (SSJ), appeared in 1999. It was followed a year later by Women and Human Development: The Capabilities Approach (WHD). One important consequence of the way Nussbaum’s feminism has developed is that it did not begin with the problems facing women in liberal societies and then confront the challenge of extending her thinking to women in quite different political, economic, social and cultural milieux. Nussbaum’s approach to feminism was, ab 152

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initio, one that strove to take the condition of women all around the world into consideration.3 Given this book’s concern with feminist liberalism, it is also relevant to observe that it was also not until later in the 1990s that Nussbaum stopped identifying her political position primarily with Aristotle and moved to more self-consciously embrace thinkers within the liberal tradition. While Aristotle remains a vital inspiration for many aspects of her thinking about human capabilities, Nussbaum stopped invoking him as a source for her approach to politics. She explains that this came about partly because of the increased attention Aristotle was enjoying at that time. His name became associated with positions that she did not share and could not endorse.4 Aligning herself with “a more liberal Aristotle” than that of MacIntyre and the neo-Thomists, she emphasized her “liberal affiliations” and talked about Kant “in order to stress that I am not one of those people who wanted to bash the Enlightenment and dismiss its aim of giving us a life enlightened by the critical use of reason” (1999c: 241). Thus, although Nussbaum studied under Rawls as a graduate student at Harvard (ibid.: 240), her liberalism seems to have come about more circuitously. She seems to have found her way back to Rawlsianism rather than it being a shaping influence on her feminism from the start. Nussbaum’s shifting relation to Rawls is, however, also partly a function of movements in Rawlsian thought itself, for one of the things she came to find most attractive about Rawls’s political theory from the mid-1980s onwards was its articulation of a purely political liberalism.5 Section 1 of this chapter, “A More Liberal Aristotle” provides a brief overview of Nussbaum’s neo-Aristotelianism and the ways in which she thinks it can serve feminist purposes. Sections 2–3 outline her human capabilities approach (HCA), drawing primarily from WHD. While this is not the only location where Nussbaum explains her position, WHD represents her first “attempt to synthesize the approach and provide an overview of it, together with at least some discussion of its philosophical justification” (2000c: 103; cf. 2002a: 90–91). Where necessary, the account is supplemented by other writings by Nussbaum. Section 2 explains briefly what the HCA is, drawing attention to its moral individualism and political purpose. The rationale for Nussbaum’s distinction between capabilities and functions is also laid out. Section 3 scrutinizes the central role choice plays in the HCA, and considers some of the complications this creates. It argues that being more fundamental than others, some capabilities have the status of Ur-capabilities. This section also considers Nussbaum’s claim that not all choices are acceptable and explores some of the implications of her admission that the line between capability and function is not always clean and bright. The chapter concludes with Nussbaum’s argument that women will be particular beneficiaries of the HCA. 153

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1. A MORE LIBERAL ARISTOTLE

One of Nussbaum’s first writings to concern itself explicitly with feminism was “Aristotle, Feminism, and Needs for Functioning” (1992b). It is curious that a thinker Okin portrays as pioneering the functional view of women is seen by Nussbaum as having so much to offer feminist thought. However Nussbaum brackets Aristotle’s views on women and the household and his defence of slavery, assuming them to be detachable from the rest of his thinking (cf. 2000c: 108, 114–15). Hers is an egalitarian Aristotle, as evidenced by the first key point she finds useful for feminism. This is Aristotle’s insistence on: an exhaustive scrutiny of all existing distributions and preferences in the name of the basic needs all human beings have for functioning. It therefore takes as its starting point (for both females and males) the problem of providing basic welfare support, including food, shelter, and medical care – although it also attends to questions of education, employment, and citizenship. (1992b: 1019; cf. 1021, 1025–6) Nussbaum’s Aristotle is powerfully attuned to the ways in which the political structure of a society distributes basic material goods and to the profound affect these have on a person’s ability to lead a flourishing life (ibid.: 1025– 6). Aristotle provides resources for criticisms “of many situations in which human beings live lives of frustration and functional inequality – including many labor situations and the situation of the family” (ibid.: 1027). In so far as women receive fewer of these basic material goods than men in most, if not all, societies, they will be the beneficiaries of any critical scrutiny of distributive justice founded on basic needs. As Nussbaum portrays it, Aristotelian thinking is not hamstrung by the sort of harsh binary divisions that so often prove unrealistic and even harmful to philosophical thinking, and which have been the subject of much feminist criticism. He offers, for example, a complex theory of the emotions that connects them to, rather than contrasting them with, judgements.6 Women, in particular, would benefit from the dissemination of this more sophisticated view, given that the feminine has traditionally been aligned with emotional life and women have often been trivialized or dismissed because of this association (ibid.: 1022). Another binary distinction Aristotle rejects is that between the general and the particular, for his theory of judgement requires close attention to contextual particulars combined with an awareness of more general human goods (ibid.: 1024). This allows an Aristotelian approach to pay attention to context without descending into relativism (ibid.: 1025). Although Nussbaum does not explain specifically why this is beneficial to feminism, it is no doubt 154

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connected to her concern with the condition of women globally, for a purely relativist outlook would make it difficult to generalize about women’s positions, interests and needs in a trans-cultural manner. Nussbaum’s Aristotle also offers an attractive blend of individualism and sociality. On the one hand, he subscribes to a belief in the separateness of persons and does not, contra Plato, think that individuals and their interests should be absorbed into the greater good (ibid.: 1022–3). This reinforces the point above about scrutinizing the distribution of goods, for “society must ask whether each and every one of its members has been enabled to live well – not only about the total or average welfare of the population” (ibid.: 1023). Nussbaum further finds in Aristotle a view that each person should be able to make autonomous choices about the shape and direction of his or her life; individuals whose circumstances do not permit this are being deprived of “their full humanity” (ibid.; cf. 1024). However, this accent on individualism and autonomy does not blind Aristotle to the centrality of human connection for well-being, as his views on friendship testify. The appeal of this position to feminists comes from its recognition of the importance of relationships in human life and its rejection of any image of the bounded, self-sufficient individual (ibid.: 1024). But Aristotle’s moral individualism is especially valuable for women who for so long have been called on to suppress their needs and interests in the service of some larger collectivity, be it the family, group or community. Nussbaum freely admits that with his respect for the separateness of persons, concern for autonomy but regard for community and sociality, this is a very liberal Aristotle (ibid.: 1027), distant historically but not normatively or theoretically from Kant and Rawls. Yet this comparison with liberal thinkers also leads Nussbaum to concede that one of the weaknesses of Aristotle’s thought is the absence of any account of the normative limits of government interference with free individual choice. Hence her recommendation that to make a viable contribution to contemporary political theory, Aristotelianism be supplemented with attention to the “basic rights of the person” (ibid.: 1020; cf. 1027; 1999c: 241). Her Aristotelian feminism becomes preoccupied with issues of poverty and inequality (1992b: 1028) and illustrates anew how concerned Nussbaum has been from the start of her writings on feminism with global issues. This is not to suggest, of course, that poverty and deprivation are not problems for many individuals in Western societies, but Nussbaum’s outlook has always been trained on the extreme poverty of those in less developed countries (1996: 208). Having listed a number of the economic deprivations that millions of women in the world suffer – inadequate nutrition, poor to no health care, restrictions on their ability to engage in paid work, crushingly low rates of pay when they do – she concludes that Aristotle’s account of human 155

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functioning offers “a promising way of criticizing such situations, more promising in certain respects than Rawlsian liberalism” (1992b: 1028). Her assessment of the superiority of the Aristotelian over the Rawlsian approach when it comes to issues of extreme deprivation seems curious, given that Rawls’s theory of justice is centrally and self-consciously concerned with minimizing economic inequality and designing a society that can freely be affirmed as just by all its members, including its least advantaged ones. Rawls’s list of primary goods would also provide a ready way of criticizing many of the deprivations Nussbaum lists. So it is hard to understand her conclusion about the advantages of Aristotelian over Rawlsian thinking when it comes to issues of just distribution of material and other goods on the basis of the arguments provided in this article. It is also hard to see why Nussbaum would prefer an attenuated and in many ways atextual appropriation of an ancient philosopher to a more straightforward application of a contemporary thinker overtly committed to the liberal values she works to recover in Aristotle.7 The key to this apparent mystery is the greater willingness Nussbaum discerns in Aristotle “to take a stand on the goodness of certain basic human functions” (ibid.: 1027). She does not elaborate on this but in a writing from the same year compares her Aristotelian approach with Rawlsian reticence in this regard. The capabilities theory, which she was then developing with Amartya Sen, differed from Rawlsian distributive justice in several ways. First, it identified a number of human capabilities as good and worthwhile and believed that they should be enabled by government. Government should make it possible for every citizen to achieve a certain level of capability whether the person took advantage of this or not. The much thinner Rawlsian conception of the good is, by comparison, less overtly committed to any richer sense of what makes human life valuable. Second, Rawls offers members of the well-ordered society a roster of primary goods, including wealth, income, rights, liberties and self-esteem, on the grounds that they will be valued by individuals irrespective of their pursuits. He seems to assume that all will think that more of such goods is necessarily better (Nussbaum 1992a: 46–7). Nussbaum counters that maximizing is not always necessary or desirable; what matters is what the primary goods enable people to do, not how much of them they have. This accent on what people are enabled to do introduces the third difference from Rawls’s approach, which is the HCA’s capacity for discernment among individuals. If one person is able-bodied and another not, these two individuals might need different amounts of the same primary good to perform the same task. If one person is pregnant or lactating and another not, the former will need more nutrition in order to achieve the same level of exertion (Nussbaum 1992a: 47; 2002a: 55–6). In this regard, then, the capabilities approach is better able than the Rawlsian approach to take account 156

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of not only the separateness of persons, but also their distinctness, when designing a just distribution of goods.8

2. THE HUMAN CAPABILITIES APPROACH

The best route into Nussbaum’s feminist liberalism is via her articulation of her own human capabilities approach (HCA) which in some ways continues the work of Sen and in others derives from her own ideas and formulations.9 Moral individualism is one of the HCA’s fundamental commitments and, like Hampton, Nussbaum uses explicitly Kantian language to capture this: “the capabilities in question should be pursued for each and every person, treating each as an end and none as a mere tool of the ends of others: thus I adopt a principle of each person’s capability, based on a principle of each person as end” (WHD: 5; cf. 13, 74). Although Nussbaum links this ideal of equal dignity with the Marxian critique of capitalism for its reduction of some human beings to mere means for the relentless generation of profit (2006: 277), she traces this back to the influence of Kant on Marx’s thinking (WHD: 73–4). What she finds helpful in the Marxian as opposed to the Kantian version of this idea is Marx’s powerful awareness that human equality needs to be manifest not just in the realm of ideas and ideals but also in material life. To any doctrine of human equality we need to pose questions about what it actually allows each person to do. It is the embodied, practical, material twist Marx gives to Kant’s idea of the kingdom of ends that inspires Nussbaum’s HCA. The capabilities approach “directs us to examine real lives in their material and social settings” (ibid.: 71). Ten capabilities are central to human life anywhere and everywhere (ibid.: 78–80):10 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

Life; Bodily Health; Bodily Integrity; Senses, Imagination and Thought; Emotions; Practical Reason; Affiliation; Other Species; Play; and Control Over One’s Political and Material Environment.

Achieving a minimum level in each is essential to being able to lead a life that is recognizably human.11 Nussbaum is not saying that a life in which all these 157

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capabilities are present will, ipso facto, be a good or happy one; these are necessary conditions of a dignified life, but what happens after individuals are enabled to live with dignity is beyond her concern. She does not argue that all ten capabilities should all be realized in each and every life for that life to possess human dignity. It is the opportunity to realize these capabilities that is decisive: that people be enabled to fulfil certain functions, irrespective of whether they do so or not. Thus while Nussbaum sometimes misleadingly conflates capabilities and functions, her interest officially lies with potential, not with the realization of these capabilities (ibid.: 8, 74, 87–8, 148, 161).12 The HCA works with an opportunity rather than an exercise concept of capabilities, for what matters is that all individuals have the ability and opportunity to act in certain ways, not whether they activate these possibilities.13 Thus a government should provide all citizens with enough food to prevent hunger and malnutrition, but if some fast for religious purposes or eat a reduced calorie diet in the pursuit of fitness or longevity, they can. All paid work should yield a living wage, so that those who work can also enjoy leisure time. However, those who wish to spend most of their waking hours working so as to support expensive tastes or because they love work more than anything else remain free to do so. Capability 3 includes “opportunities for sexual satisfaction” (WHD: 78) but some might prefer celibacy. Above the basic minimum guarantees, individuals remain free to do or not do what they wish, subject to a version of the harm principle, which rules out harming others’ capabilities (WHD: 59, 160–61, 180, 192, 204).14 One way of interpreting Nussbaum’s focus on the availability of the capabilities to a minimal level is as a liberal separation of the right from the good. What happens when the minimum necessary in each of these areas has been supplied becomes a matter of the good rather than the right, resting in the hands of individuals, not the state. Thus, although the HCA is rooted in a conception of the capabilities that make a human life worthy of that name, and so is underpinned by a theory of the good, it yields recommendations about the political right only, not the good. It is what people are able to do, rather than what they actually do, that should be the concern of a liberal theory of justice. Nussbaum provides a political, rather than a complete moral, philosophy (WHD: 148) and presents these ten capabilities as things that governments should guarantee their citizens. If people fall below the minimum level in any one of these areas, it becomes the responsibility of their government to redress this (WHD: 6, 71). These ten capabilities should enjoy the status of constitutional essentials or guarantees (WHD: 12, 35, 74, 115, 118, 202, 298, 303). Whether enshrined in written constitutions or not, Nussbaum’s point in awarding them this status is to make it legitimate for citizens to demand that their government bring everyone to a basic level for each of the ten capabilities (1999d: 169). The HCA thus provides a major way 158

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of assessing a country’s politics: a government’s success or failure should be measured by these benchmarks.

3. CAPABILITIES AND CHOICE

This distinction between capability and function underscores a traditionally liberal component of Nussbaum’s position which is its respect for free individual choice. Such respect is formally present in her list as capability 6, Practical Reason, which enables its possessor “to form a conception of the good and to engage in critical reflection about the planning of one’s life” (WHD: 79). However, free choice occupies a more fundamental position in Nussbaum’s framework, for one of the reasons she distinguishes capability from function is to respect individual choice. Equal respect for each individual as a choosing agent is a positive aspect of the welfare positions Nussbaum otherwise rejects (WHD: 117) and she gives this good a central place in the HCA (WHD: 69, 88; 2000c: 129). Practical reason is both a particular capability and a more pervasive good “that suffuses all the other functions [sic], making them human rather than animal” (WHD: 87; cf. 92). But bringing free individual choice into the spotlight in this way complicates some of the HCA’s other features. For example, Nussbaum presents the ten capabilities as equally important for a life of human dignity (WHD: 13), insisting that they cannot be traded off against one another (WHD: 81). However, she has just admitted that one of the capabilities – practical reason – gives value to any functioning that arises from the other capabilities, which points to a hierarchical rather than a horizontal relation between the ten capabilities. Practical reason or free choice seems to be a foundational good, lending value to the other capabilities. Indeed, this foundational status also seems to be held by dignity. It is part of capability 7, Affiliation, part B, but, as we have seen, a concern with the dignity that comes from being treated as an end in oneself pervades the entire framework (WHD: 13). Nussbaum herself gives capability 7, Affiliation, this special status of being not just an equal item on the list but as suffusing all the others (WHD: 92). Her willingness to accord some capabilities special status is evident from the fact that, although generally eschewing the perfectionist label because of her concern with capability rather than functioning (1999d: 175 n.24; 2000c: 128, 131), she concedes that “the capabilities for sociability and practical reason … [are] capabilities concerning which I am in a sense perfectionist, holding that without them only a subhuman type of functioning is available” (2000c: 129; cf. 2001b: 145).15 For the reasons just indicated, dignity also seems to enjoy this privileged status.16 Three capabilities – dignity, practical reason, affiliation – thus seem to be Ur-capabilities.17 It is more accurate to see the HCA as founded on a core of 159

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intersecting Ur-capabilities that then inform a (trimmed down) list of more precise capabilities. These Ur-capabilities are intersecting rather than separate because it is, presumably, only forms of affiliation that recognize all parties’ dignity and practical reason that Nussbaum would endorse. The HCA’s “core idea is that of the human being as a dignified free being who shapes his or her own life in cooperation and reciprocity with others” (WHD: 72).18 This general characterization of affiliation being valuable only when freely chosen is borne out by her views on religion. While the HCA protects liberty of conscience,19 this does not give religion free rein to portray or treat women as unequals in ways that elements of some of the major religious traditions have (WHD: 177, 188, 197). Instead, when a religion violates “a central human capability (whether religious or nonreligious) we will not give religion the deference that is usually due to it” (WHD: 204; cf. 2005). Thus as I understand it, the HCA would endorse only religious (or any other sort of ) affiliation that respected women’s equality in dignity and practical reason with men. This suggests, however, that affiliation might not be the foundational value or Ur-capability that Nussbaum implies that it is (although these are my terms, not hers), for affiliation’s value is contingent on the mutual recognition among the affiliates of each other’s practical reason and dignity,20 whereas the value of dignity and practical reason do not seem to depend on affiliation in this way. It might be best to think of dignity and practical reason as the two Ur-capabilities (cf. WHD: 284–5) and restore affiliation to its status as a capability only. Whether there are two candidates for what I am calling Ur-capabilities (dignity and practical reason) or three, as Nussbaum herself suggests (dignity, practical reason and affiliation) the point remains that some capabilities have a more fundamental status than others.21 Nussbaum’s list of the ten is actually more hierarchical than egalitarian.22 Recognizing the HCA’s structure as more hierarchical than egalitarian would lead to a change in its theoretical self-understanding only and need not affect its political purpose. It would not license a government to say that having supplied the two (or three) Urcapabilities, it can ignore the rest. Indeed, one of the HCA’s attractive features is Nussbaum’s above-mentioned insistence on the material conditions for goods such as practical reason and dignity, so in practice their provision cannot be separated from adequate nutrition, health care, education and so on. A second complication arising from Nussbaum’s accent on free choice appears when she decrees that some choices are never acceptable. Female genital mutilation (FGM) can, for example, never be a legitimate choice “even when practiced by adults without coercion” (WHD: 94; cf. SSJ: 129). She gives two reasons for this surprising conclusion: surprising, at least, in terms of her liberalism.23 The first is that FGM creates long-term health risks and thus presumably conflicts with capability 2. The second reason for FGM’s 160

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proscription is that it “involves the permanent removal of the capability for most sexual pleasure” (WHD: 94; cf. 87). It thus interferes with capability 3, Bodily Integrity, which includes “opportunities for sexual satisfaction” (WHD: 78).24 Nussbaum counsels that we “be especially concerned with choices citizens may make to surrender permanently the necessary condition of a function” (2000c: 131; cf. 2001b: 145). This implies that free individual choices are sacrosanct only when they do not close off capabilities and the opportunities for future functioning they represent. As well as circumscribing Nussbaum’s respect for free individual choice, this caveat complicates the process of choice, for Nussbaum seems to be requiring that all individuals make choices that are consistent with keeping all capabilities open indefinitely. This also means that, pace my claim in §2, a more powerful caveat than the Millian harm principle is needed to guide the decision of when an individual’s choices can be constrained by the state. The focus cannot rest with limiting individual freedoms that harm others, for certain types of self-harm, harming one’s own capabilities, would also be precluded. Yet from this perspective, some of the choices Nussbaum otherwise accepts might preclude capabilities. Sustained fasting, for example, could damage one’s health. The choice to smoke cigarettes could also be prohibited, yet Nussbaum supports a ban on smoking only when it harms others.25 Her insistence that the HCA leaves space between capability and function out of respect for free individual choice is, therefore, less straightforward than some of her formulations acknowledge. The relationship between capability and function is further complicated by Nussbaum’s admission that the line between them is not always clean and bright. Sometimes promoting capability can require functioning, which not only blurs the distinction but once again places limits on free choice. She identifies two areas where capabilities and functions can be hard to disentangle. In the first, functioning is preparatory to capability. Here Nussbaum is thinking of childhood, observing that for adults to be rendered capable of some activities, they have to have been equipped for them as children (2001b: 144). Compulsory education is an example of the way in which functioning can be a precondition of capability (WHD: 89–90; 2000c: 130). Children’s choices – and perhaps those of their parents for them – are thus constrained in order to enhance their range of choices as adults. The second area in which actual functioning and mere capability can be hard to separate is trickier with regard to individual choice. In some cases, only functioning can testify to the existence of capability. Nussbaum gives the example of voting, which is part of capability 10, part A, Control Over One’s Political Environment. On the face of it, we would expect the HCA to say that the government’s duty is to make it possible for all citizens to vote. Whether people actually exercise that right falls into the category of 161

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functioning and should be left to individual discretion. However, Nussbaum suggests that it is hard to be confident that the capability exists if it is never exercised; there might be subtle but powerful barriers preventing some people from participating in elections. Some citizens might feel intimidated, unworthy, uninformed or uneducated; some might not think of themselves as really belonging to the democratic community despite having de jure membership. In these cases, failure to function is not simply free choice. And in such cases, the only way to ensure that the capability exists is through its realization. Here Nussbaum toys with the idea of compulsory voting and concludes that it is not ruled out by her framework. It could be defended via “a very good capability reason” (WHD: 93). Once again free choice could be curtailed; the freedom of all not to vote would be constrained because of the ambiguity of inaction on the part of some.26 My aim here is not to disagree with Nussbaum’s recommendations about FGM or compulsory voting but to bring out some of the complexities inhabiting her framework, which go acknowledged in her own representations.27 That complexities arise is not surprising, given the ambition of her schema.

4. WOMEN’S CAPABILITIES

Whatever the theoretical complexities of Nussbaum’s HCA, she believes that women will be particular beneficiaries of its implementation.28 This is because females are, worldwide and in the aggregate, worse off than men. As Nussbaum announces, “no country treats its women as well as its men” (WHD: 2; cf. SSJ: 31). Not only do women “lack essential support for leading lives that are fully human”, but this “is frequently caused by their being women” (WHD: 4; cf. 86; SSJ: 54). Her remarks demonstrate once again that feminist liberals are not reluctant to generalize about women as a group; indeed, in Nussbaum’s case, her generalizations are more encompassing than many of Okin’s and all of Hampton’s because she surveys the scene of gender inequality globally. They also show that despite her criticism of aggregating approaches to development economics, Nussbaum is willing to talk in these terms when assessing women’s situation.29 Yet one of the things this aggregating approach occludes is that many women in Western countries are much better off in terms of capabilities than are men, either in their own countries or in developing countries. So the key point for Nussbaum seems to be that when men and women occupy similar socioeconomic locations, women typically emerge as disadvantaged compared to men.30 Thus, when compared to their male counterparts, women in developing countries fare worse by all the capability measures. They lack sufficient food and health care, are less likely to be educated or even literate, and face 162

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obstacles to participation in the paid workforce ranging from family disapproval to cultural proscriptions to gender discrimination in hiring. Should they find paid work, they confront the possibility of lower pay, sexual harassment and the likelihood of the double-day syndrome, affording them less, if any, time for leisure. They might also endure violence, including sexual and domestic violence (WHD: 1–3). In some non-Western nations, women’s problems are compounded by the fact that they do not enjoy equal legal status with men, lacking property rights, freedom of association, religious liberty and mobility. But even when women are men’s de jure equals, they often lack the means – money, education, time – to exercise their rights and thus are practically, if not formally, second-class citizens (ibid.: 4; FJ: 287; 1996: 203–4). In many ways Nussbaum’s account of women’s condition across the globe resembles Okin’s finding of “similar but more so” (Chapter 6, §1). And Nussbaum would agree with Okin that one cause of this has been the fact that women have not seen themselves, nor been seen by others, as ends in themselves. As Nussbaum puts it: all too often women are not treated as ends in their own right, persons with a dignity that deserves respect from laws and institutions. Instead, they are treated as mere instruments of the ends of others – reproducers, caregivers, sexual outlets, agents of a family’s general prosperity. (WHD: 2; cf. 5–6, 243, 247; 1999a: 22–3) This points to another way in which the HCA benefits women in particular, for as we have seen, it enshrines a commitment to treating each human as an end in himself or herself, to seeing all “as sources of agency and worth in their own right, with their own plans to make and their own lives to live, therefore as deserving of all necessary support for their equal opportunity to be such agents” (WHD: 58). This challenges a long and powerful history of men and women looking on women as beings of secondary importance, a history that has been influential in Western and non-Western countries alike (WHD: 6). Hence Nussbaum’s conclusion that her international feminism represents in some ways a continuation of Western feminist thought. Long-standing feminist concerns with “employment discrimination, domestic violence, sexual harassment, and the reform of rape law” (WHD: 7) remain relevant in less developed countries.31 Both “Western and non-Western nations have been culpably slow to criminalize [marital rape]” (1999f: 23). However, these foci need to be accompanied by attention to such basic issues as “hunger and nutrition, literacy, land rights, the right to seek employment outside the 163

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home, child marriage, and child labor” (WHD: 7). Poverty and its deprivations are not unique to developing countries but the mere fact of hunger “assumes horrific proportions in many parts of the world” (1996: 208), and feminist theory needs to attend urgently to this. Nussbaum therefore proposes that “problems of poor working women in both developing and developed nations should increasingly hold the centre of the scene, and that problems peculiar to middle class women should give way to these” (WHD: 7).32 Because she does not specify which problems are peculiar to middleclass women, it is unclear exactly which items should be moved down the feminist agenda and why they do not represent failures to acknowledge women’s equal dignity or transgressions of their capabilities. Nussbaum cautions that the similarities that manifest themselves in women’s situations should not lead women in wealthier countries to assume that they understand the situations of those in poorer ones. It is necessary to appreciate the “concrete material and social contexts … in dialogue with” women in developing countries before policy proposals can be developed (WHD: 7; cf. 10, 41). This claim is significant for a number of reasons. It connects with her view that each country should decide for itself how the capabilities are ensured: the “multiple realizabilty” provision of the HCA (WHD: 77, 105; 2000c: 126–7).33 This in turn reflects her perpetuation of the Aristotelian approach mentioned above, combining awareness of human universals with attention to contextual particulars (cf. WHD: xv, 7–8). It also prevents the sort of projection of one’s own experiences onto women everywhere that has been such a central item of criticism in the intersectionality literature. Nussbaum’s reference to dialogue also seems to make room for attention to women’s diverse self-interpretations. She insists that expanding to include the concerns and situations of women worldwide in this inductive manner, and being committed to both understanding and improving women’s situations, is in keeping with feminist thought’s history of building women’s experiences, perspectives and needs into its philosophizing (1996: 208; 1999d: 180; 1999e: 37–8).34 Yet as the next chapter illustrates, Nussbaum is also cognizant that feminist philosophy cannot incorporate women’s perspectives in an unmediated way, for sometimes that knowledge can embody their subordination rather than their status as ends in themselves, and needs, therefore, to be leavened with critical reflection.

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The capabilities approach is fully universal: the capabilities in question are important for each and every citizen, in each and every nation, and each is to be treated as an end. (WHD: 6; cf. FJ: 78) One of the claims pervading this book is that a revived feminist liberalism must engage the challenge of intersectionality. Can this school of feminism generalize about women while remaining attentive to salient differences among them? Can feminist liberalism make room for the self-interpretations of diverse women? This chapter begins by posing these questions to Nussbaum’s HCA. It then examines the problem that adaptive preferences pose for her feminist liberalism and considers her attempts to resolve this. This issue receives extended treatment because it has been argued that adaptive preferences pose an insuperable obstacle to any reconciliation of liberalism and feminism. This chapter’s concluding section sketches a slightly different way of understanding the HCA, one that tries to avoid some of the conundrums currently entangling it.

1. CULTURAL DIFFERENCES

As we saw in Chapter 5, the intersectionality debate became a pressing issue for Okin’s feminist liberalism in her discussion of group rights. Many of Okin’s first responders accused her of being neglectful of or indifferent to differences among women. Okin was also charged with: pitting the category of women against that of culture; according too little, if any, agency to women in cultural or religious minorities; treating non-Western cultures in a simplistic and sometimes pejorative way; seeing cultures as unified and homogenous, rather than sites of contestation and resistance; envisaging cultures as 165

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separate, bounded, independent wholes; and judging all cultures by liberal standards. While not all of these accusations were wholly justified, by remaining within her comfort zone of shared liberal meanings and failing to consider in any detail the self-interpretations of members of minority cultural and religious groups, Okin gave the impression of talking about, rather than with, members of those groups: she seemed to be treating them as objects of, rather than subjects in, the debate. It is necessary to consider whether Nussbaum’s feminist liberalism replicates or avoids any or all of these pitfalls. This is an even more important issue for Nussbaum, whose feminism has, from the start, striven for a global perspective. This ambition compels her to consider how her feminist liberalism, as embodied in the HCA, will be received by members of different cultures. The HCA is profoundly committed to the idea of the equal dignity of all individuals and to respecting each person as an end in himself or herself. This alone puts it at odds with aspects of many cultural and religious traditions, Western and non-Western, which have treated women, and encouraged women to see themselves, as subordinate to men, as finding their primary purpose in serving others (SSJ: 29–30; 1996: 202–3). In some cases women have internalized a belief in their secondary status, while in others they have challenged it (SSJ: 29; 1996: 203),1 which means that the HCA, with its commitment to women’s equality, can expect to encounter both resistance and support across a range of cultures. As this implies, Nussbaum does not see cultures as unified wholes but as dynamic and heterogeneous “scenes of debate and contestation” (WHD: 13; cf. 47–9, 59; SSJ: 14, 256, 267; 2001a: 59). Individuals are not passive recipients of cultural messages: rather, meanings are made, re-made and altered by them (SSJ: 14, 267; WHD: 182). As active participants in these processes of resignification, women often struggle against oppressive aspects of their culture or religion (WHD: 42, 44, 107; SSJ: 267). Nussbaum’s depiction of cultures as plural, contested and dynamic is offered not just in the interests of clairvoyant analysis but also because it enables her to challenge any particular claim about a cultural consensus on certain values and goods. This depiction disarms anti-universalist claims about any particular features of a culture that clash with the HCA, for while some aspects of an internally diverse culture might be at odds with the HCA, others can buttress it. And just as cultures are not internally homogeneous, nor are they hermetically sealed, but can borrow from one another (SSJ: 256; WHD: 48). “The ideas of feminism, of democracy, of egalitarian welfarism, are now ‘inside’ every known society” according to Nussbaum (WHD: 49; cf. 2001b: 135). This image of permeable cultural borders recurs in her observation that “there is nowhere in today’s world where ideas of human rights, human dignity, human equality, and fair terms of cooperation 166

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are not widespread” (FJ: 303–4). One important implication of this belief in cross-border influence is that even if the HCA contains many ideas that are more obviously Western in their origins, this need not be an impediment to their being taken up by people in non-Western cultures should they find them appealing. However, Nussbaum is well aware that simply pointing to internal plurality says nothing about power relations within cultures. Any culture might contain diverse strands and interpretations, but some are more dominant and influential than others. In a passage redolent of Okin’s claims in MBW, Nussbaum warns that: When women are at issue, we should be especially skeptical of deferring to the most powerful voices in local tradition. In most parts of the world, that voice is especially likely to be a male voice, and … may not be all that attentive to the needs and interests of women. (SSJ: 8; cf. 109; 1999d: 178; 2001b: 138) Indeed, there are a number of points at which Nussbaum’s analysis of genderbased power differentials within a culture resonates with Okin’s. Nussbaum’s reply to Kymlicka on the issue of group rights is a good example. Having pointed out that women’s voices are unlikely to dominate, or even to be equal, in a group’s depiction of its culture, she asks: So why should we give a particular group of men license to put women down, just because they have managed to rise to power … if we have concluded that women should have guarantees of equal protection in our nation generally? … it is grossly unfair to the women, who are simply being told that because they are tribal women, or whatever, they do not enjoy the same guarantees of liberty that other women do. (SSJ: 109; cf. 2005) Nussbaum’s position is, if anything, more forceful than Okin’s because it depicts the failure to apply liberal standards to minority groups as “condescending to that group – we don’t hold them to the same moral standard to which we hold ourselves” (SSJ: 109). The moral individualism at the centre of Okin’s, Hampton’s and Nussbaum’s liberalism mandates that individuals not be subordinated to groups (WHD: 74; SSJ: 108).2 None are saying that groups are unimportant; on the contrary, as we saw in the previous chapter, affiliation is one of the HCA’s ten capabilities and sometimes appears as an Ur-capability. However, as also argued there, the value of a group or any sort of collective or community must be measured according to whether it honours the belief that each 167

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member is an end in himself or herself.3 And this applies to the cultures, traditions and beliefs that groups perpetuate too: such things are valuable and worthy of enduring only if they acknowledge each adherent to be an end in himself or herself. One of Nussbaum’s more forthright statements of the priority of the capabilities for each individual over cultural traditions appears in her declaration that: there are universal obligations to protect human functioning [sic] and its dignity, and … the dignity of women is equal to that of men. If that involves assault on many local traditions, both Western and non-Western, so much the better, because any tradition that denies these things is unjust. (SSJ: 30) As this signals, the HCA’s support for pluralism is qualified: not all diversity is valuable and practices, traditions and attitudes that subordinate women to men should be allowed to wither away (WHD: 51, 59) or actively curtailed in cases like FGM. However, it is hard to know in advance what practices, traditions and attitudes would fade away were the HCA adopted, for what matters to Nussbaum is individual choice, and if it can be shown that participants freely and equally choose to perpetuate a particular practice, then Nussbaum would have to allow it to persist. Thus she concedes that “an emphasis on the capabilities does not in any way preclude the choice to live a traditional, hierarchical life” (WHD: 235). By way of illustration, she suggests that polygamy is not inherently oppressive to women: if equally available to men and women and participated in by both genders freely and equally in a context not marked by gender inequality, it would be an acceptable family form (WHD: 229; cf. Cohen et al. 1999a: 141 n.5). Many of Nussbaum’s claims about cultures as plural and negotiable apply to religions too (SSJ: 115; WHD: 182; 2001a: 61). Religious traditions have not been as receptive to women’s voices as to men’s (SSJ: 115; WHD: 182) and she sees this as a basis for criticizing them. Nor does she shy away from the fact that “the world’s major religions, in their actual historical form, have been unjust to women both theoretically and practically. In contemporary politics, religious groups have frequently had a pernicious influence on women’s lives” (WHD: 177; cf. 188, 197). SSJ lists a number of ways in which religious traditions have been harmful to women: “the Hindu, Islamic, and Confucian traditions have all … undermined women’s claim to basic goods of subsistence” (SSJ: 88). Religions might also treat rape as a sign of impurity, blaming the victim (SSJ: 90). Some religious norms confine women to the home, preventing them from seeking paid employment (SSJ: 93–4). Nussbaum also observes that “the control of women’s bodies has been a central preoccupation of many, if not most, religions of the world … In a wide range 168

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of cases, they violate some of the most basic rights of a human being” (SSJ: 93). Young (2001: 822) faults SSJ for its tendency to focus on harms done to women by religion in non-Western settings and Nussbaum for sounding like a judgemental outsider. However, as Nussbaum says in that work, in keeping with her view of religions as internally plural and contested, “Religious discourse, if a villain in many of my examples, is also, in multiple and powerful ways, a major source of hope for women’s future” (SSJ: 115). Young’s concerns also seem to be mitigated by WHD’s treatment of religion, for there Nussbaum talks more about religion in general (rather than its non-Western manifestations) and accentuates some of its positive features. She points out that women’s subordination to men is not intrinsic to most religions, claiming that “It is rare to find a serious argument to the effect that a certain type of harm or inequality toward women is required, as such, by the spiritual or moral values inherent in a religious tradition” (WHD: 187). Religion can be a source of “protection for human rights, of commitment to justice, and of energy for social change” (WHD: 178). Again, this is linked to her belief that religions are not inherently univocal (WHD: 181, 185–6, 188, 198). In the case of culture, so with religion; her moral individualism means that individuals should not be subordinated to religious traditions or groups (WHD: 188). Nussbaum is not saying that groups are unimportant in religious life, but only that the value of a religion must be measured according to whether it honours the belief that each of its followers is an end in himself or herself (WHD: 189–90, 192, 195, 239–40; 2005). For many people, the capability of searching for “the ultimate meaning of life in one’s own way” will continue to include a strong religious dimension (WHD: 179–80, 186, 188, 190). Forwarding this claim in a non-critical way, Nussbaum sees herself as offering an important corrective to the views of secular humanists and many feminists. Indeed, a whole chapter of WHD is devoted to “The Role of Religion” (WHD: 167–240) in the belief that too many of her fellow liberals and feminists either ignore religion or treat it in a cursory or even dismissive fashion (WHD: 174–81). Nussbaum nominates Okin as a contemporary feminist who pays insufficient attention to religion’s positive role. WHD depicts Okin as under-informed about Judaism in particular (WHD: 175 n.17, 181 n.26, 182 n.27), but in Nussbaum’s reply to MBW the gloves come off. She accuses Okin of holding religion to have no value and of showing no interest in understanding why others would be religious (1999b: 105). Okin’s view of religion is simplistic and her scholarly standards lax when discussing it. Okin refers to the harm religious belief can do but not to any of its benefits (ibid.: 105–7) and completely neglects that fact that many women, and many feminists, have been and continue to be religious believers (ibid.: 106).4 169

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These claims seem harsh, given that MBW’s focus is not religion as such but group rights. Okin also acknowledges there that “the powerful drive to control women – and to blame and punish them for men’s difficulty controlling their own sexual impulses – has been softened considerably in the more progressive, reformed versions of Judaism, Christianity, and Islam”, although she contends that “it remains strong in their more orthodox or fundamentalist versions” (MBW: 14; cf. 2004: 1556). Okin mentions “the exciting types of reinterpretation of Islam” some scholars are pursuing (1999b: 122) and refers to women offering re-readings of their religious texts and traditions, trying to distil how much is culture and how much is politics.5 Okin also deems it “good that pro-religion feminists are seeking out and trying to foster the most woman-friendly strands within their own religions” (ibid.: 123). This testifies that she sees religious traditions as capable of reform in more gender-equal directions, so cannot be read as offering a feminist critique of religion as irredeemably patriarchal nor as univocal. She recognizes religious women as agents in the reinterpretation process, so does not ignore their voices in religious debate. Nor does she deny the central role that faith plays in some women’s lives. She recognizes that religion can be put to pernicious political uses, but acknowledges the attempt by some believers to disentangle the two. Okin (1994a: 31) shares Nussbaum’s awareness that the liberal values of religious freedom and gender equality can come into conflict and would share Nussbaum’s strong preference for religions that respect the latter. So notwithstanding Nussbaum’s criticism, in many ways Okin’s position on religion, although less fully worked out, does not seem so distant from Nussbaum’s own.

2. SELF-INTERPRETATIONS

Underscoring the influence that women’s voices have had on her own thinking about justice, Nussbaum reports that: “It has been important to me to work in close partnership with women and men who do empirical fieldwork and to hear, through these partnerships, the voices of women fighting against hunger and illiteracy and inherently unequal legal systems” (SSJ: 6). Her method lets “the voices of many women speak” and “seeks collaboration with women and men from many different regions”. In this way, the universal values she defends become “the fruit of many years of collaborative international work” (SSJ: 9). One of WHD’s primary aims was to make audible the voices of a number of female Indian scholar-activists (2004: 202). Because of this input from members of a range of cultures, Nussbaum hopes that ordinary individuals will not experience the HCA as an alien imposition: on the contrary, “it seems to square pretty well with the things these women are already thinking about, 170

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or start thinking about at some time in their lives, and want when they think about them” (WHD: 109).6 This signals her broader hope that the HCA intersects powerfully with the self-interpretations of women (and men) around the world. Although Nussbaum says that she has drawn on “cross cultural academic discussion and on discussions in women’s groups” in developing the HCA, this latter source does not seem especially powerful given that the groups were “designed to exemplify certain values of equal dignity, non-hierarchy and non-intimidation” (WHD: 151). It is hardly surprising that members of such a group would condone many aspects of the HCA. But if one draws from those already committed to these values, it is hard to argue that this provides independent validation of the framework’s cross-cultural appeal (cf. Jaggar 2006: 313).7 Nussbaum’s claim that the HCA meshes with what women in developing countries actually want has, moreover, been disputed by some of the HCA’s feminist commentators. While admiring Nussbaum’s attempt to articulate universal standards for social criticism, Ackerly believes that a serious lacuna in her approach is its failure to incorporate any “methodological requirement to consult with the silent voices in a society” (2000: 13). In the absence of any formal, external check on Nussbaum’s interpretations of that society, it is hard to ascertain whether the goods she claims as universal really are valued by members of this society. Its absence also makes it easier for the philosopher to (perhaps unwittingly) import her own values and preferences into the purportedly universal framework. Ackerly recommends that a feminist approach to social criticism be not just critical but also self-critical, and Nussbaum’s methodology falls short on this (ibid.: 13, 105, 110, 199). Okin also criticizes Nussbaum’s failure to let her subjects speak for themselves, especially given that her approach is supposed to be based on dialogue with them. Nussbaum’s text rarely includes direct quotations from her female informants in India. Their views are, instead, mediated and interpreted by her (Okin 2003: 295, 297; cf. Norton 2001: 746),8 making it harder to sustain Nussbaum’s claim that her capabilities list captures things these women want. Okin concedes that Nussbaum’s evidence shows that these Indian women want more control over their lives. She agrees that they would desire adequate nutrition and not to be beaten. But Okin finds no warrant in Nussbaum’s work, nor in other accounts of the views of the poor in less developed countries, for the claim that they care about many of the HCA’s more abstract components (Okin 2003: 295–7, 310; cf. Deveaux 2006: 78). She doubts that the HCA has been developed in a truly dialogical fashion, which, in turn, calls its claim to universality into question. Instead, Nussbaum’s: highly intellectualized conception of a fully human life and some of the capacities central to living it seem to derive far more from 171

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an Aristotelian ideal than from any deep or broad familiarity with the lives of women in the less-developed world. As for the more sophisticated, even fanciful, items on her list, they seem to draw more from the life of a highly educated, artistically inclined, selfconsciously and voluntarily religious Western woman than from the lives of the women to whom she spoke in India. (Okin 2003: 296; cf. 311) Turning the tables on Nussbaum, Okin argues that the HCA accords more importance to religion than it assumes in the lives of people in developing countries (ibid.: 296–7). They do not present their religious views as a matter of free choice (ibid.: 311–13) which is, of course, the way religion is presented in the HCA (Chapter 9, §3). Okin’s own assessment of the role of religion and spirituality in the lives of poor people is mixed: she recognizes its presence but is also concerned about religion being used as a way of justifying, or consoling them for, their poverty. These concerns about Nussbaum’s failure to engage the views of ordinary women are echoed by Jaggar, who points to the incongruity of WHD’s conclusion. The book’s penultimate page describes the HCA as “the systematization and theorization” of the thoughts and plans expressed by members of a women’s collective in Andhra Pradesh. But this claim rapidly loses credibility in light of the group’s actual plans as listed in their annual report, which Nussbaum reproduces (WHD: 302). In stark contrast to the general and abstract quality of the capabilities, each item in the report is very specific and most concern immediate improvements in the women’s material lives. As Jaggar observes, “Perhaps the collective’s wishes indeed reflect its members’ pre-theoretical leanings toward the capabilities better than they reflect, for instance, their leanings towards welfare or human rights but a much more careful argument would be needed to establish this” (2006: 314).9 Of course, it is reasonable, and no doubt necessary, for Nussbaum, in trying to generate a normative framework of universal relevance, to abstract from the specific desires of any particular group. However, Jaggar implies a problem of translation here: how exactly is it that a desire for more fruit trees becomes an expression of one or more of the ten capabilities? In one sense, Nussbaum has a ready reply: all the items on the list, indeed, the very generation of the list of desiderata, indicates the women’s desire to increase their choices.10 Nussbaum could also reply that their desiderata, both individually and in the aggregate, reveal a desire to enhance control over their material environment, which is capability 10, part B. But Nussbaum’s failure to carry out this careful work of translation weakens her claim that the HCA expresses what people actually want and that all ten capabilities are equally important.11 But even if Nussbaum attended more closely to the problem of 172

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translation in this case, showing that the HCA legitimately abstracts from one group of women’s stated desires would be just a small beginning in any project to demonstrate its universal relevance. Thus Jaggar echoes Okin and Ackerly in maintaining that Nussbaum’s “failure to pay careful attention to the issue of representation undermines the plausibility of her assertion that her list of capabilities expresses values that are widely accepted across the world” (2006: 313; cf. 315). Similar reservations resonate in Deveaux’s conclusion that Nussbaum “takes too little account of cultural members’ own understandings of their lives, customs and conflicts” (2006: 79). Deveaux raises an important more general point about the sort of method that feminist followers of Rawls should adopt. With the shift to political liberalism, Rawls became more obviously concerned to “link the legitimacy of political principles of justice to their wide (actual) acceptability by – and applicability to – a plurality of citizens” (Deveaux 2002: 504). One consequence is that “If the resonance of moral ideals and rules with diverse persons is held to be of real, justificatory significance, then the question of whether or not particular moral principles hold universal validity … has an empirical aspect” (ibid.). I take Deveaux to be saying that theorists of justice inspired by Rawls must take account of the self-interpretations of the people for whom they are developing those theories. Yet as she observes: to date, no feminist discussions of the issue of “culture versus sex equality” has argued in a systematic way for a dialogical approach sensitive to the claims of cultural groups … both Nussbaum and Susan Okin argue for the application of principles of justice that do not take much account of the values and normative commitments of members of traditional cultures. (2002: 518) Deveaux’s point about the need for a Rawlsian-inspired approach to intersect with what citizens themselves think about justice also reminds us that one of Rawls’s central aspirations from the first to the last of his formulations of justice as fairness was that members of the well-ordered society experience its principles of justice as their own, that they can affirm them freely and fully, rather than receiving them as alien impositions. To know how far from or close to this desideratum one’s theory of justice is, it is essential to know something about the self-interpretations of the persons for whom the theory of justice is being formulated. Here we see from yet another angle that the contemporary feminist liberals studied in this book must pay attention to women’s diverse self-interpretations. In so far as they fail to do so, they are disappointing the demands of their own liberalism, to say nothing of their feminism. 173

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Replying to Okin’s critique of her failure to incorporate the voices of women in poor countries, Nussbaum implies that the more important place for dialogue about the HCA comes not in its formulation but in debates about its adoption. The HCA advances a universal framework whose appeal and salience is put to the test by people in different countries deciding whether it reflects their needs, desires and interests. Nussbaum’s approach allows “the voices of poor and disadvantaged people to be heard” in three ways, the most important of which is that “the conception is advanced in the public arena as a good idea, a likely template for domestic political principles … [which] will only be implemented if … those involved actually sign on to it” (Nussbaum 2004: 199).12 Yet the role assigned here to dialogue in evaluating the HCA is different from Nussbaum’s depiction of, and Okin’s complaint about, its generation. According this evaluative role to dialogue also seems to require a vibrant and deliberative public culture. But this hobbles the HCA’s universalism in another way, for members of non-democratic polities would seem to be unable to respond to it. This idea of democratic deliberation about the HCA is also at odds with its deontological character, an impression confirmed by Nussbaum’s later remarks that any community’s decision to jettison the capacity for religious freedom would be unacceptable: “We ought to say, ‘What the majority desires here is wrong’” (ibid.: 201). It is also hard to reconcile Nussbaum’s suggestion that democratic debate about the HCA’s appeal is the most important way in which the voices of the poor become audible with her claim, shortly after, that “we may give desire a modest ancillary role in political justification, consulting informed desire as a cross-check on our independent moral argument” (ibid.: 200, emphasis added; cf. 203). This seems to diminish dialogue’s role in evaluating the HCA, even though Nussbaum has just underscored it in her response to Okin. Moreover, by taking only informed desire into account, Nussbaum creates for herself the dilemma of deciding whose desires qualify as such.13 This brings us to her larger discussion of adaptive preferences.

3. ADAPTIVE PREFERENCES

In Chapter 6, the problem of adaptive preferences emerged in the context of individuals who cannot exercise a wide range of choices, and feel unable to change their situation. In such cases, they can become satisfied with, and attached to, what they have or can achieve, so that their stated preferences reflect their subordination and shrunken horizons. Adaptive preferences present feminist liberalism with a dilemma: on the one hand, as liberals, they want to valorize free individual choice; on the other hand, as feminists, they 174

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are sensitized to the ways that subordination and oppression can reduce a person’s sense of what he or she is entitled to. The tradition of feminist concern with consciousness-raising reflects this awareness that people’s stated desires and preferences might not always emanate from a robust sense of themselves as free and equal agents. However, drawing on figures such as Adam Smith, Mill, Kant and, most recently, Rawls, Nussbaum notes that liberalism itself has evinced anxiety about the ways in which forces such as “ignorance, malice, injustice and blind habit” can shape and skew preferences (WHD: 114; cf. 1999f: 42). Her worries about adaptive preferences are therefore overdetermined, informed by both her feminism and her liberalism. Nussbaum devotes one of WHD’s four chapters to “Adaptive Preferences and Women’s Options” (WHD: ch. 2, 111–66). She concedes that adaptive preferences might not in themselves be problematic; they might just signal that a person has adjusted his or her desires and aspirations to what they can reasonably expect. Adaptive preferences could be a mark of responsibility and maturity (WHD: 137). But she also recognizes “the many ways in which habit, fear, low expectations, and unjust background conditions deform people’s choices and even their wishes for their own lives” (WHD: 114). So adaptive preferences are “deplorable” only when they represent “adjustment to bad circumstances” (WHD: 138; cf. 99). Those circumstances could be poverty and the many deprivations it creates or social attitudes and practices that strip people of any sense of entitlement to more and better. Although Nussbaum does not specify it here, she seems to be referring to bad circumstances that could be otherwise, could be improved or removed by human action, either through state activity or a change in social attitudes and practices, or both. One of the HCA’s advantages, in Nussbaum’s estimation, is that it does not rely exclusively on individuals’ stated preferences to derive a sense of what is good for them. Rather, it stipulates in advance what is good for all individuals to be enabled to do. Falling below the capabilities threshold is deemed bad in itself, irrespective of how those in that situation experience it (WHD: 144). However, while Nussbaum’s claim that the value of the capabilities obtains despite any opinions to the contrary responds to the worry posed by adaptive preferences, it generates separate problems. First, there is the question mark it places over her professed respect for individual choice. As she says, when according some role for actual desires in discerning what is good “The fact that human beings desire something does count … because we think that politics, rightly understood, comes from people and what matters to them, not from heavenly norms” (WHD: 146; cf. 2004: 200). If the HCA neglects what people actually want, focusing instead on what they should want, and if one or some individuals appear to be passing judgement on the choices and preferences of others, it runs the risk of riding roughshod over individuals’ 175

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equality, dignity and practical reason. So it is hard initially to square Nussbaum’s awareness of adaptive preferences with her professed respect for individuals’ desires and choices. She expresses her dilemma thus: [U]nder what conditions are preferences a good guide to such fundamental issues of social choice, and under what conditions might we be justified in departing from or criticizing some of them in the name of important norms such as justice and human capability? (WHD: 115) Dubbing this a “treacherous question” (2004: 195) conveys just how clearly Nussbaum sees this to be a complex issue for her framework. According to Phillips, Nussbaum’s dilemma reflects the fact that she is “simultaneously hooked on the idea of choice and critical of most people’s choices” (2001: 262; cf. 263).14 As Phillips later puts it, “Actual choice is … set aside in the name of the high value attached to choice” (2002: 401).15 In Deveaux’s estimation, “certain choices are simply not choices at all in Nussbaum’s capability scheme” (2006: 78). Jaggar charges Nussbaum with circularity on this issue, claiming that her “test for determining whether or not a desire is informed seems to be precisely whether or not it can be interpreted as a desire for one of the items on her list” (2006: 316; cf. 319–20). Any insistence on the attitude-independent value of the capabilities creates a second problem for Nussbaum, given her depiction of them as things that people intuitively endorse. She writes, for example, of the HCA being “informed by an intuitive idea of a life that is worthy of the dignity of a human being” (WHD: 5; cf. 78 n.83, 148). This begs the question of how we could appeal to people’s intuitions about what is valuable in a way that was divorced from their preferences and desires. If some people’s preferences and desires have to be discredited or discounted because of adaptation to injustice, what value inheres in their intuitions? Or is it only the intuitions of some, not everyone, that are reflected in the capabilities list?16 If Nussbaum is, in fact, if not expressly, suggesting that it is only the intuitions of some, this is problematic for a theory aspiring to universal relevance. It would also be perilous for a framework that, while aiming for universal relevance, has been generated primarily from Western philosophical sources. In anticipation of this danger, Nussbaum tries to absolve the HCA of any charge of philosophical neocolonialism (1996: 203; WHD: 149).17 She reminds us of her willingness to modify (or even abandon) any parts of that framework that clash repeatedly and irreconcilably with peoples’ informed desires, with the preferences they express when not cowed by subordination. She proposes to emulate Rawls’s method of reflective equilibrium, according to which the HCA would be submitted to individuals’ considered sense of 176

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what the necessary elements for a life of human dignity are, or at least those that can be provided by politics (WHD: 101–2; 2001b: 136). Any element that clashed with powerful and enduring beliefs about what is right or valuable would be subject to revision or rejection (1999d: 187; WHD: 77, 151; 2000c: 116–17). Indeed, this process has already occurred. After listening to women in India she gave greater prominence to property rights which are part of capability 10, part B, Control Over One’s Material Environment. She came to accept that her initial intuitions about what property rights stood for were faulty, having been shaped by the emphasis accorded to them by libertarianism, which linked them in her mind with disregard for the poor. She revised the capabilities list accordingly (1999d: 189; WHD: 156–7).18 The process of reflective equilibrium requires more than cross-checking the items in the HCA against people’s considered judgements. This must be followed by a comparative process, subjecting rival philosophical frameworks to the same scrutiny (WHD: 102; 2007b: 127). Nussbaum freely admits that the path of reflective equilibrium is a protracted one, doubting parenthetically whether “it ever would be” complete (WHD: 102; cf. 103). Should the process of political justification ever be complete, “it would give us the confidence to move ahead” with its implementation in different national contexts and in some international arenas (WHD: 102–3). But questions of implementation themselves require a new phase of debate and discussion for, as we saw at the end of Chapter 9, the multiple realizability feature permits each nation to operationalize the HCA in its own way. While laudably honest, Nussbaum’s admission that the HCA is a long, slow row to hoe is at odds with the sense of urgency she typically conveys about remediating the suffering of so many individuals worldwide. It seems that, on the one hand, Nussbaum wants to present the HCA as embodying many of the desires and aspirations of ordinary women around the globe. However, this ambition has to be curbed in light of her recognition that women are especially encumbered by preferences adapted to conditions of subordination and injustice (1999d: 187; WHD: 139). Their desires and aspirations might be too low, and thus need to be raised rather than simply respected, by any feminist theory of justice. In this context, it is important to note that Jaggar‘s inference that Nussbaum attributes adaptive preferences only to “oppressed women in the global South” (2005: 189; cf. 188) is inaccurate. For Nussbaum, women everywhere are vulnerable to adaptive preferences because their desires have not always been formed in conditions of justice and equality. As the next chapter signals, she joins some of the feminist critics of the ethic of care in seeing women’s propensity to care as an adaptive preference. This does not mean it is only or necessarily that, but it should alert us to the question of how much of women’s caring activity is chosen and to the context in which the care is carried out (1999f: 40–41).19 177

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Nussbaum offers no obvious way out of this paradox of presenting the HCA as embodying the desires and aspirations of ordinary women around the globe while recognizing that many women’s preferences have been shaped by conditions of subordination and injustice. It could be that the phenomenon of adaptive preferences erects an insuperable obstacle to her attempt to forge a coherent form of feminist liberalism. This explanation is in line with an argument recently advanced by Ann Levey.

4. LEVEY’S CHALLENGE

Like many of liberalism’s feminist critics, Levey (2005: 127) acknowledges the ways in which it has traditionally served feminism, with its commitment to equality, its insistence that accidental features not determine or limit an individual’s progress and its promotion of individual rights and autonomy. However, in her estimation, adaptive preferences pose an intractable problem for any reconciliation of liberalism and feminism. If gendered adaptive preferences are part of a person’s conception of the good, this must be a cause of concern to feminism whereas liberalism affords no basis on which to criticize this (ibid.: 128–9). There are a number of ways in which Nussbaum in particular, and the feminist liberals focused on in this book more generally, can engage Levey’s analysis while resisting her conclusion. First, recognizing no concern with (troubling) adaptive preferences in the liberal tradition, Levey overdraws the contrast between liberalism’s carefree regard for individual choice and feminism’s attention to choices made against a background of injustice (ibid.: 127–8). Without awareness of Nussbaum’s point that liberalism itself manifests a history of concern with preference deformation, it is easier to contrast liberalism and feminism on this score. However, at times Levey intimates that not all choices are equally unproblematic for liberals, writing of liberalism’s respect for “a person’s choices, at least when fully informed and voluntary” (ibid.: 128). Although she does not elaborate on what is required for liberals to deem choices fully informed and voluntary, it is only such choices that feminist liberalism will respect too. Second, Levey points out that people do not always experience the choices they made or actions they took “in restricted circumstances” as unfortunate. Whatever an action’s origin, an individual can come to be glad that his or her life took this direction rather than that. Not all accommodation to unchosen outcomes is sour grapes (ibid.: 132–3). Levey applies this logic to gendered choices too, for we sometimes come “to value our gendered options, and to value them as a robust part of our overall understanding of what is valuable” (ibid.: 134). Nussbaum would agree; as we have seen, only 178

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adaptive preferences formed in bad but mutable circumstances disturb her. Levey goes on to observe that views about unequal worth do not underlie all gendered choices. If it can be shown that women’s choices flow from a belief in themselves as free and equal agents, then their choices should not be suspect from a feminist liberal point of view either. Levey’s description of the innocent pleasure some women take in shopping and fashion and suggestion that it should be compared to, and deemed no less worthy than, men’s pursuit of frivolous activities (ibid.: 136) might illustrate her point that not all gendered choices cause concern. Here Levey’s conclusion mirrors Nussbaum’s: the mere fact of women’s preferences being adaptive “is not sufficient to render them suspect for liberals unless the causes for the restricted options are unjust” (ibid.: 134). Like Levey, feminist liberals want to criticize circumstances where women’s choices are unjustly constrained. But even if, as Levey claims, “most preferences are adaptive” (ibid.; cf. 135), we still need a way to distinguish choices made in the context of gender justice, equality and respect, from those made in circumstances lacking those features. As she points out: the gendered system operates to produce people whose interests and preferences serve to perpetuate differences in power and expectations between men and women. Preferences, attitudes, and values are differentially distributed on the basis of sex. The resulting gendered choices perpetuate stereotypes and patterns of income and power distribution that at least in part constitute gender hierarchy in our culture. (Ibid.: 128) If women routinely opt for lower-paying professions or unfair distributions of domestic labour or asymmetrical caring relationships (ibid.: 129), these can be expressions of adaptive preferences formed in, and against a long history of, unjust gender conditions. Because liberalism must ”remain silent about these choices” (ibid.: 128),20 it provides no way of addressing the problems they reflect and reproduce (ibid.: 137, 140). Yet as we have seen throughout this book, feminist liberals such as Okin, Hampton and Nussbaum advocate a range of techniques to rectify the fact that many women make choices that work to their disadvantage. In some cases, the state can be called on to legislate for justice in the case of unequal pay on the basis of gender, or any other form of employment discrimination. As we have seen with Okin, the state can support a more equal distribution of domestic labour through policies about parental leave, day care and so on. With regard to more personal relationships, all three thinkers are concerned to raise women’s awareness of themselves as beings entitled to respect and acknowledgement of their status as ends in themselves and in so doing hope 179

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that this will encourage women to stop tolerating unjust and disrespectful treatment. Okin, Hampton and Nussbaum see this as consistent with, rather than contrary to, their liberal principles. Their understandings of liberalism do not counsel silence or helplessness in the face of these sorts of injustice. Instead, they form a chorus of endorsement for Levey’s claim that preferences based on false beliefs about women’s inferior worth would be problematic (ibid.: 135). Overdrawing the distinction between liberalism and feminism permits Levey to exaggerate the distance between them in terms of outcomes too. “Taking feminism seriously enough means giving up liberalism in the following respect: it requires us to take seriously that justified political action may fail to respect the considered choices of some women” (ibid.: 128; cf. 141). At one level, that is just the problem of democracy; some, and perhaps all, public policy fails to respect the considered choices of some citizens. Yet, perhaps unlike Levey, the feminist liberals studied in this book feel considerable discomfort in overriding “the considered choices of some women”.21 Thus Okin and Nussbaum allow women, in the interests of pluralism, to choose a gender-structured household and a traditional lifestyle. Because all three of the feminist liberals surveyed in this book express reservations about state involvement in individuals’ lives, if an individual made a considered choice, they would find it hard to justify violating that (subject of course to the harm principle). Thus pace Levey’s formulation, the feminist liberals surveyed in this book do take feminism very seriously, but (or perhaps and therefore) would be reluctant to justify political action that overrode women’s considered choices. But even if feminist liberals hesitate to use the state to override some women’s choices, they need not remain sanguine about those choices. They would look for other less intrusive and heavy-handed ways to promote change. Levey might be right that some feminists would justify political action that violated the considered choices of some women, but it is wrong to tar all feminism with this brush. When it comes to feminism and liberalism, Levey writes as if the twain shall never meet, thus ignoring the careful attempts by the thinkers showcased in this book to continue to synthesize these traditions. This brings us to one definite area of disagreement between Levey and the feminist liberals examined here. For the former, “Choices and the conceptions of the good that underlie them may be debated in the cultural marketplace, but they are not the state’s business and therefore not the business of political philosophers either” (ibid.: 140). This conclusion seems to derive from a narrow, highly traditional and largely non-feminist view of the political, one that sees it as exhausted by issues of legitimate state power. The feminist liberals discussed in this book care deeply about violations of liberal values wherever they occur but do not always think that the state is the appropriate 180

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mechanism for responding to these. So they would be much more willing, as political philosophers, to take their arguments into the cultural marketplace (Chapter 14, §4) in the manner deemed inadmissible by Levey. Another area of disagreement emerges as Levey admits to not knowing “exactly what the appropriate political responses” to the persistence of troublesome gendered preferences should be (ibid.: 141). She briefly cites Okin’s policy proposals, but does not seem to find them persuasive without explaining why (ibid.: 140). She suggests that “feminists” might consider policies to “ensure” shared parenting between men and women and shared custody of children in the event of divorce (ibid.: 141). She also talks of ensuring “equal expectations of economic contribution and independence” (ibid.) between men and women. She does not, unfortunately, explain how such outcomes would be ensured, so there is a large unanswered question about their feasibility, even bracketing the question of their appeal. She floats the idea of tax policies that favour women working outside the home and men staying at home. Speculating about policies that might address adaptive preferences, Levey mentions quotas for men in traditionally female occupations such as nursing, and quotas for women in traditionally male occupations. This might exclude some women from the opportunity to pursue the profession of their choice, but a feminist commitment to gender justice can require this. However, questions about feasibility arise here too, for keeping eligible women out of nursing will not in itself create more female doctors. This would only work if those who could not become nurses turned to medicine instead, but given that the educational preparation for each career differs, this is unlikely. Achieving the goal of having more women doctors needs to start much earlier in the socialization and educational processes. Increasing the number of women pursuing a medical career could also be fostered through publicawareness campaigns, which would not be injurious to female individuals wishing to become nurses in the way that a quota system will be, by Levey’s own admission. Increasing the number of men who become nurses could be aided by raising the salary level. But to suggest that her route is the one that “feminists” should adopt neglects entirely the legitimacy of the feminist liberal standpoint on these issues. Levey might respond that their proposals will not bring change whereas hers will, but any such argument needs to be made with care and in some detail. Ultimately, however, the key question for Levey regarding adaptive preferences is the key question for feminist liberals: “the extent to which such choices are fully voluntary and hence the extent to which the underlying preferences are truly women’s own” (ibid.: 129). As feminist liberals insist, until women enjoy a wider range of choices with the same opportunities and tariffs as men, we cannot know where their choices will fall. Indeed, the upshot of this ignorance about what women who can freely choose will 181

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choose is that we cannot even yet be confident which preferences are adaptive. Only when injustice and inequality are removed or reduced can we be confident that an individual’s former choices were adjusted to bad but mutable circumstances. Indeed, with less injustice and inequality, women might continue to choose the same things. But the crucial difference for a feminist liberal would reside in the different process and experience of choice. The difficulty of identifying adaptive preferences with any confidence until women make choices in conditions of greater equality and justice applies, of course, more to the choices that many Western women make about careers and family life – which are Levey’s primary focus – than to women in economically poor countries who might deny themselves food and other basic necessities and who see no value in becoming literate. Indeed, having raised the issue of poor women in India,22 Levey says that, by contrast, “If the preferences of middle-class North America are not largely autonomous, then it is hard to see that anyone’s preferences might be autonomous” (ibid.: 130). Yet this construction of a monolithic middle-class North America elides the very distinction that feminist liberals insist on: that women and men currently make choices in quite different circumstances, with women typically assuming that their lives will involve significant caring responsibilities. But even if Levey is correct about middle-class North Americans, it still leaves open the question of whether liberalism can serve the interests and needs of non-middle-class North American women, of which there are many, with very pressing needs.

5. SALUTARY LIBERALISM

Even if Levey does not provide a decisive argument against the fusion of feminism and liberalism, it cannot be denied that Nussbaum confronts a dilemma. On the one hand, she does not provide a compelling reply to Ackerly, Okin, Jaggar and Deveaux (and others) about how to incorporate the self-interpretations of actual women in developing countries into her framework. Nussbaum could, of course, respond that the problem of adaptive preferences makes their voices irrelevant in either its formulation or justification, but there are good reasons why she does not take this route. On the other hand, it seems that Nussbaum ultimately provides no satisfactory reply to the question, which she repeatedly admits is a thorny one, of how to distinguish adaptive preferences from those worthy of respect.23 For these reasons, I propose a slightly different way of interpreting the HCA. It is not wholly removed from Nussbaum’s own depiction of her project, but accentuates some of her claims while ignoring others. It is a more prescriptive and 182

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perfectionist reading than Nussbaum might feel comfortable with, but it aims to avoid some of the conundrums currently ensnaring her thinking. The HCA can be thought of as capturing things that all individuals either do want, or could come to want, were they able to form preferences undistorted by unjust surroundings and habituation to subordination. So it starts with “a partial … conception of the good life, a moral conception selected for political purposes only” (WHD: 77; cf. 96), which identifies the capabilities that either do or should matter in all human lives. There is thus an undeniably prescriptive component to the HCA that could easily clash with people’s actual desires if those desires have been distorted by unjust circumstances. But Nussbaum should not shy away from the proposition that the problem here lies with the preferences and desires, not the framework. Thus, notwithstanding its emphasis on free individual choice, it seems that what the HCA really facilitates is “critical scrutiny of preference and desire that would reveal the many ways in which habit, fear, low expectations, and unjust background conditions deform people’s choices and even their wishes for their own lives” (WHD: 114; cf. 136).24 By rejecting certain desires as born of fear, habituation and injustice and by enumerating things that people should want, the HCA aims to bring it about that people will want these things. As with Okin’s feminist adaptation of Rawls’s OP and the thought experiment in Hampton’s feminist contractarianism, there is an educative or consciousness-raising component to Nussbaum’s HCA. By listing capabilities that all humans are entitled to in order to lead a dignified life, the HCA is not necessarily representing how people currently think but is encouraging them to view themselves in this way and to review their life from the standpoint of its commitment to equal human dignity. The HCA invites all humans to imagine themselves as deserving these capabilities, as ends in themselves, and to think about what sort of demands they would place on one another and the political system. Exposing people to the HCA is not holding a mirror up to what they already think but encourages them to see themselves in its terms. Via this educative process, the HCA becomes a self-reproducing normative framework because, in Millian fashion, Nussbaum believes that those who have experienced its goods, or have even only come to see themselves as entitled to them, will continue to affirm them (WHD: 152–3). She maintains that even cases where women have freely chosen a traditional mode of life cast no doubt on the framework’s appeal, for such women typically present this as a personal choice rather than a denial of the framework’s value for other women (WHD: 153).25 The HCA is, therefore, committed to equal respect of individuals, yet the reality of adaptive preferences, particularly among women, prevents it from automatically affirming whatever preference any individual states. As Nussbaum says, liberalism’s commitment to “the norm of equal respect 183

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for personhood” makes it “perfectly consistent for a liberal … to support certain forms of interference with choice if it could be successfully argued that such interference promotes equal respect rather than undermining it” (1999f: 16–17).26 This approach also means that the HCA does not articulate a series of capabilities that are currently universally recognized or valued: rather, they are potentially universalizable. Proponents advance the HCA in the hope that people worldwide will want to adopt it, but, pace Nussbaum’s remarks that form this chapter’s epigraph, no a priori claim can be made to its being universal or having universal appeal or application. Its universal appeal is an open question, to be decided by people in different countries debating its merits.27 Nussbaum herself depicts the HCA as a good idea that needs to be debated in countries before they agree to adopt it (WHD: 103). Depicting the HCA as universalizable rather than universal emphasizes its potential for universal adoption as well as the processual nature of this. Were this chapter’s epigraph reworded with these revisions in mind, it would read: “The capabilities approach is fully universalizable: the capabilities in question may prove to be important for each and every citizen, in each and every nation, if each person, considering himself or herself as an end, finds them appealing”. Accentuating the process of debating the HCA’s appeal also provides a way for Nussbaum to respond to her many readers who express varying levels of scepticism about how genuinely universal its contents are. Their “main worry about universalism is that it illicitly smuggles the pre-occupations of one culture, tradition, or social group into its proclamations about universal norms” (Phillips 2002: 399; cf. Butler 1996: 47; Young 2001: 820–21). Degrees of such scepticism range from moderate to profound. At the moderate end lies Miranda Fricker’s observation that SSJ’s list “includes capabilities described in a way that makes them dependent on culturally and historically contingent institutions” (2000: 472).28 Although Fricker deems these to be “glitches in an otherwise very plausible and ethically powerful list”, they warrant attention because “confidence in the universalist project must be earned precisely by showing that historical and cultural specificity can be kept from creeping into the description of the purportedly universal capabilities” (ibid.). More profound scepticism emanates from Mary Beard, for whom the HCA comprises “a set of criteria impossible to frame in anything other than a Western language – and probably in anything other than American English” (2000: 6). Beard does not, unfortunately, elaborate on nor defend this strong claim, nor even indicate what its defence would require. One way in which Nussbaum could answer sceptics of any degree would be by contending that the HCA is universalizable, and that its universality or otherwise can be determined only ex post facto, rather than ex ante. 184

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Were Nussbaum to take this route, she would have to concede that in a free and open debate, citizens of a particular country, all of whom think of themselves as ends in themselves, might decide that the HCA is not for them. However, she could take solace in the fact that this outcome is unlikely, or rather that revisions to the HCA are more likely than flat-out rejection. Here we are helped by Cass Sunstein’s work, which Nussbaum touches on in her discussion of adaptive preferences (WHD: 143). Sunstein (1991: 8) points out that all individuals’ preferences are shaped by context, and this context includes legal rules, inter alia. It therefore makes no sense to say that the only justification for creating laws is that they reflect people’s current preferences, for those preferences have themselves been shaped by the existing legal rules. More generally, contexts shape preferences and not all contexts are just, provide full information or promote individual autonomy. Preferences formed in restricted or unjust circumstances have no necessary claim to respect. The problem of adaptive preferences means that when a liberal-democratic government simply responds to its citizens’ preferences, it is not necessarily acting in a way that promotes liberal values of autonomy, equality and justice. In the name of a “salutary liberalism” (ibid.: 4), Sunstein proposes that a liberal state might enact laws and provide services that its citizens might not want until they have them. Once they have them, they will value them and not wish to surrender them. In short, they will develop a preference for them. Preferences are therefore adaptive in both directions; they can adjust to restricted circumstances, shrunken horizons and low self-esteem but they can also expand to new possibilities opened up by changes in the law, among other things. Laws against sexual harassment provide one example of “upwards” adaptation. Their creation has an impact on those protected by them, and once workers enjoy a right not to be sexually harassed they will acquire a preference for that. Yet they might not have developed such a preference in advance of the right being conferred (ibid.: 8). In these cases, by making new desires possible the law actually promotes the autonomy of citizens. My suggestion is not that Sunstein’s argument be used to justify imposing the HCA on all states on the grounds that their citizens will eventually come to want these capabilities. Rather, Sunstein’s argument highlights that preferences can be developed and people can come to want rights and liberties for themselves once exposed to them. If people come to think of themselves as entitled to certain capabilities, they are likely to become attached to them and unlikely to cede them. Thus the challenge for the HCA is to encourage people to think of themselves as entitled to the capabilities it enumerates and to make claims on their governments accordingly. The HCA includes, as intimated above, an inescapable educative or consciousness-raising component. And it is here that Nussbaum’s evidence from Indian women’s groups 185

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is relevant. As noted above, these women are not especially good evidence that the HCA is universal. They do, however, demonstrate that its contents are universalizable, for women in these groups have come to think of themselves as deserving something like the capabilities and, seeing themselves in this light, are unlikely to resume their previous self-interpretations, which embedded lower expectations. Connecting with ordinary women’s self-interpretations is, nonetheless, a crucial ingredient in this educative aspect of the HCA. For as Nussbaum recognizes, in order to raise people’s expectations about what is due to them and what sorts of claims they can make on each other and the state, it is essential to know how they currently perceive themselves and to start from where they are. It does no good to go into an Indian village and deliver a lecture on Kant or the HCA. It is necessary, instead, to engage with the concrete particularities of people’s lives (SSJ: 48). For this reason alone, Nussbaum’s international feminist liberalism should incorporate a strong awareness of the importance of women’s self-understandings, for in order to change their self-interpretations it is necessary first to apprehend them.29 Appeals to what ordinary people think largely drop out of Nussbaum’s later presentation of the HCA’s derivation. In FJ she says that it is informed by “an intuitive idea of a life that is worthy of the dignity of a human being … all of them [the capabilities] are implicit in the idea of a life worthy of human dignity” (FJ: 70; cf. 74, 78, 82–3, 155). She continues to find cross-cultural verification for these claims but focuses on official discourse, not ordinary people’s values. It is now “by design” that “the capabilities list starts from an intuitive idea, that of human dignity, that is already basic to constitutional framing in many nations of the world” (FJ: 155). Appeal to “the most vivid intuitive ideas we share” (FJ: 279) has not disappeared entirely but is much less pronounced.30

6. CONCLUSION

It is useful to wrap this discussion up by assessing the extent to which Nussbaum’s work manifests any or all of the seven problems identified with Okin’s at the start of this chapter. Nussbaum cannot be accused of seeing cultures as unified, harmonious and homogenous nor of envisaging them as separate, bounded, independent wholes. Because culture is not monolithic, she does not pit the category of women against it. Nor is the category “women” monolithic, and she does, officially at least, recognize the agency of women in different cultures. Some critics would say, however, that her tendency to attribute women’s choices that she disapproves of to troublesome adaptive preferences does fail to respect women’s agency, and does not allow 186

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women to make choices diverging from those she endorses. Nussbaum does not treat non-Western cultures in a simplistic or pejorative way,31 although some of her critics would say that the false universalism and liberal bias of the HCA mean that she effectively judges all cultures by liberal standards. As Deveaux sees it, “nothing short of a fully liberal egalitarian framework for the sexes can supply the requirements of social justice” (2006: 74; cf. 9) from Nussbaum’s perspective. Samuel Freeman makes this point about the HCA universalizing liberalism in a slightly different way when he takes Nussbaum to be claiming “that there is a branch of liberal thinking within most, if not all, of the important moral and religious traditions that, upon reflection, can endorse human rights to all the central capabilities” (2006: 392). Nussbaum is, in effect, appealing only to those aspects of non-Western cultures that are sufficiently liberal or liberal-compatible to affirm the HCA. As we shall see in the next chapter, the HCA also contains a generous dose of liberal politics. In all these ways it does look as if Nussbaum judges all cultures by liberal standards.

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[T]he capabilities approach rejects the familiar liberal distinction between the public and the private spheres. (FJ: 212) One of the things to emerge from this book’s account of the feminist liberalism of Okin and Hampton is how seriously they engage some of the issues associated with the critique of liberalism mounted in the literature on the ethic and practice of care. This chapter examines some of the ways in which Nussbaum’s feminist liberalism handles these issues. Section 1, “Family resemblances”, outlines her views on the place of family in the HCA, showing how these dovetail with Okin and Hampton’s views on the family.1 Section 2 reveals how Nussbaum’s engagement with the ethic of care goes beyond that of Okin and Hampton with her extended reflections on dependency in FJ. Section 3 explores her views on privacy. Here she follows some of the more radical feminist critiques of the public–private separation and, by contrast with Okin, gives no indication that a refurbished notion of privacy has anything to offer feminist liberalism. Section 4 points out that although the state plays a pivotal role in the HCA, Nussbaum is no champion of unbridled state power.

1. FAMILY RESEMBLANCES

Some evidence of Nussbaum’s engagement with the ethic and practice of care appears in her decree that “These virtues and abilities [love and care] need to find a place in any viable universalist feminism” (WHD: 242). The value she attributes to care is also reflected in capability 5, Emotions, which includes “Being able to have attachments to things and people outside ourselves; to love those who love and care for us” (WHD: 79). Capability 7, Affiliation, part A, includes the abilities “to recognize and show concern for other human beings … [and] to imagine the situation of another and have compassion 188

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for that situation” (ibid.). The family has typically been the arena in which love and care have been practised, especially by women. Nussbaum’s second rationale for attending to the family is that it “has been a, if not the, major site of the oppression of women” (WHD: 243). Families can be arenas of violence, sexual abuse, and unequal distribution of opportunities for nutrition, education, leisure and self-esteem to girls and women. The family is thus Janus-faced, and even those exhibiting love and care can display some of the features of its second face: not physical or sexual violence, but girls’ and women’s relegation to secondary status. A third reason for Nussbaum’s focus on the family is her recognition that to render adults capable of some activities, they must be equipped for them as children (Chapter 9, §3). As an institution producing and socializing children, the family can have a powerful effect on the capabilities of children and the adults they become (WHD: 245–6, 270). Thus, just as Nussbaum’s interest in adaptive preferences was driven by both her liberalism and her feminism, so her interest in care, her concern with gender equality and the need to form some capabilities in childhood compel her to examine the family. Given this, her declaration that “the family as such has no moral standing” (WHD: 251) might come as a surprise. As a theoretical claim, this does not preclude individuals placing a high moral value on family membership: indeed, affiliation is one of the ten capabilities, and Nussbaum also accords it a privileged status (Chapter 9, §3).2 However, like Okin and Hampton, she maintains that some family relationships are more valuable forms of affiliation than others (WHD: 9, 244, 274). Relationships combining love, care and respect for the dignity of oneself and intimate others earn a higher moral premium than relationships that fail to exemplify the worth each person has an end in himself or herself. Behind Nussbaum’s announcement that the family enjoys no a priori moral standing is a position akin to Okin’s, according to which the family has for too long been treated as a collective entity. Nussbaum freely admits that the liberal tradition has been guilty of this, failing to extend its moral individualism to the family and occluding the possibility that its members have discrete and perhaps divergent interests. Viewing the family as a unit has worked against the interests of its female members, in particular, who have often been encouraged or required to subsume their needs as individuals to the welfare of the family as a whole (1996: 205; 1999f: 23, 25; WHD: 65, 243, 247). From a moral and political standpoint, families must be regarded initially as groups comprising individuals, and each of its members’ needs as individuals must assume priority over whatever value the family has as a unit (1999c: 256). Thus, for Nussbaum, whatever moral status the family has must be earned; it cannot be assumed. Families that promote the capabilities of all their members are to be supported and encouraged, while those that stunt and deform them demand reform. 189

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By insisting on a life that affords each person dignity, the HCA can “promote more fruitful and less exploitative styles of caring” (WHD: 247). This aligns Nussbaum’s project with Hampton’s ambitions for a more truly caring ethic of care (Chapter 7). The similarity in their positive views about caring is evident in the following passage, where Nussbaum explains that: The common propensity of women to subordinate themselves to others and to sacrifice their well-being for that of a larger unit may in many cases be morally admirable, but this should by no means be taken for granted. Such dispositions have been formed, often, in unjust conditions … all such emotions [should] be valued with the constraints of a life organized by critical reasoning … The norm … should be the idea of being treated as an end rather than a means, a person rather than an object. (SSJ: 10–11; cf. WHD: 245) Like Okin and Hampton, Nussbaum attributes women’s greater tendency to practise care to their socialization and the social division of caring labour rather than being grounded in female biology. But even if there are some biological roots for women’s tendency to care, this is a difference in degree rather than kind, for plenty of men have shown themselves capable of care, just as many women have proved themselves to be capable in arenas beyond the household (WHD: 264–5). Nussbaum suggests that men’s reluctance to engage in caring work is fostered by “social conceptions of manliness and success” (FJ: 214), which can, and should, be changed. She thus joins Okin and Hampton in conceding that there might be some natural differences between men and women but in hesitating to accord these much explanatory or normative weight. Instead, she follows Okin in endorsing Millian agnosticism about women’s nature. Only once men and women face the same opportunities and can freely and equally choose the activities they engage in could we begin to have any inkling of whether there are innate differences between them and how significant these might be (SSJ: 52; WHD: 67). Nussbaum also shares Hampton’s concern that people who become too heavily invested in caring for others can lose themselves in the process: “women’s propensity to care for others [can sometimes] veer over into an undignified self-abnegation in which a woman subordinates her humanity utterly to the needs of another or others” (SSJ: 13). Like Hampton, she does not deny the legitimacy of self-sacrifice or devotion to the care and well-being of others (WHD: 56–7). Nussbaum is saying that no one should define themselves exclusively in this way, as having their value exhausted by the services they provide others. As an end in himself or herself, each person should appreciate their own value and, from such a standpoint, make 190

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a choice to serve others, rather than seeing this as mandated by their nature or as their sole raison d’être (1999f: 40–41). Nussbaum’s recommendation, cited above, that caring emotions “be valued with the constraints of a life organized by critical reasoning” (SSJ: 10) has been criticized in Michael Slote’s discussion of liberalism and care. Slote depicts Nussbaum as insisting that all loving relationships be subject to continuing rational scrutiny, so that people always ask themselves why they love their intimates: “The liberal tells us that it is always appropriate to scrutinize our feelings and relationships, that we should maintain a kind of critical vigilance, regardless of circumstances” (Slote 2007: 78, later emphasis added). Slote concludes that this betrays liberals’ inadequate appreciation of love’s value. But he does not recommend unconditional love and service to others: he knows that some relationships can be unhealthy and exploitative. His preferred alternative is a contingent “critical responsiveness”, which reacts to danger signals in a relationship when it is starting (or continuing) to go wrong and which triggers critical reflection on its value. Questioning the health of one’s relationships when there are such signs is appropriate, whereas the sort of full-time critical vigilance he attributes to liberals such as Nussbaum is not (ibid.: 79). Unfortunately, Slote provides little evidence of what Nussbaum actually says on this topic, so that in place of quotations or faithful paraphrases, he claims that “Nussbaum makes it sound as if …” (ibid.: 78). But the position he permits himself to impute to her is a caricature of the more nuanced one she actually advances. The liberal he constructs as a foil to his own position is, at least in Nussbaum’s case, a straw figure.3 A more faithful reading would, moreover, reveal her to be much closer to the sort of critical responsiveness Slote himself endorses. When it comes to loving relationships, Nussbaum’s worry is that all cultures encourage women to sacrifice themselves to the care of others. She urges women to resist this unthinking behaviour. As we have just seen, this does not preclude considerable effort and care being expended for others, but Nussbaum wants women to do this freely, as a choice, rather than enacting a culturally encouraged script or seeing themselves us undeserving of purposes and goals of their own. Nothing in her writing demands ongoing questioning of one’s relationships. In the text that Slote cites, but does not engage in any detail, Nussbaum conducts a long discussion about the permissibility of altruism and of devoting a significant amount of one’s time and energy to others, and concludes: let her love others and give herself away – provided that she does so freely and judiciously, with the proper critical scrutiny of the relevant social norms … this proposal, far from killing love … indicates the conditions under which love is a healthy part of a flourishing life. (1999f: 41, emphasis added; cf. 38, 40, 43) 191

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Nussbaum’s wording is highly compatible with Slote’s own conception of critical responsiveness, for it cannot be considered a judicious use of one’s critical capacities to subject healthy and loving relationships to continuous scrutiny. When properly understood, Nussbaum’s urging of reflection is contingent in the same way that Slote’s is. Her remarks on intimate relationships in SSJ underscore this, for, writing on the danger of objectification in heterosexual relationships, she allows that “one moral goal of an intimate relationship is to establish a context within which respect can be taken on trust and acts that would elsewhere mean domination and subordination do not, therefore, mean this” (SSJ: 249, emphasis added). In a trusting (and trustworthy) relationship, there is no need to fear acts and attitudes that might be demeaning in a different context. Because Nussbaum freely admits that one can drop one’s critical guard in such circumstances, Slote’s claim that she encourages critical vigilance “regardless of the circumstances” is wrong. In her discussion of the family Nussbaum also endorses Okin’s point, learned from Mill, about its educative role with regard to both gender relations and citizenship.4 In Nussbaum’s nifty phrase, “The family reproduces what it contains” (WHD: 243): if children grow up in an environment of mutual respect and equal dignity for males and females, that should be perpetuated in any families they might form, as in their attitudes to fellow citizens. Conversely, children raised in an environment of inequality and disregard for some of its members, may find it hard to overcome these attitudes as they mature. It is “implausible that people will treat women as ends in themselves and as equals in social and political life if they are brought up, in the family, to see women as things for men’s use” (WHD: 244). This also applies to the domestic division of labour: if women are undervalued, and shoulder a disproportionate burden of domestic work, boys and girls are likely to grow up thinking that these are things that women should do and that they are worth less than men’s activities (WHD: 251). However, the fact that Nussbaum shares Okin’s willingness to tolerate, under certain conditions, households structured along traditional gender lines (1999d: 175; WHD: 41, 59; 2000c: 123) poses some problems here. While a plus for pluralism, if the point about the family’s pedagogical power is correct, the perpetuation of gender-structured households will make it hard for children in such households not to grow up assuming that caring and domestic duties are women’s work. One way out of this would be to hold that undervaluing domestic work can be separated from its performance by women, and that its undervaluing is what matters most. Otherwise, Nussbaum would have to say that she is willing to tolerate gender-structured households even though they impart lessons that can be inimical to the achievement of gender equality in the realms of household and citizenship. 192

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Chapter 2 argued that the more defensible version of Okin’s position on the family as the first school of social relations is the softer one: a gender-just family is not a sine qua non for producing just citizens, but growing up in an egalitarian household provides a more consistent education in justice for citizens. Although Nussbaum does not discuss it directly, this softer position is also more compatible with her willingness to accept gender-structured families, for the “sine qua non” stance would mean that children raised in those families could not become just adults. Her claim above that it is “implausible” (rather than impossible) that people raised in a family where women are seen as things for men’s use will treat women as ends in themselves and as equals in social and political life also suggest the softer interpretation. Some of Nussbaum’s formulations about the family’s role in preparing people for citizenship in SSJ buttress this reading, for she describes Okin and Mill as arguing that “families in which females are unequal to males serve those goals [of preparing children for democratic citizenship] badly” and that boys raised to believe that males are superior to females will “have a difficult time tolerating political equality outside the household”. She concludes that “A more equal division of power between males and females, by contrast, better serves these larger human interests” (SSJ: 272–3). Thus, when it comes to education for citizenship, Nussbaum talks about unjust households serving goals badly and creating difficulties whereas just families serve these goals better. She is not asserting the impossibility of becoming a good liberal citizen from a gender-structured household. Consistent with her point about the multiple realizability of the HCA, Nussbaum holds that a variety of family forms could support the capabilities of their members (1996: 208; SSJ: 274; WHD: 261). In this way she echoes Okin’s (and eventually Rawls’s) point that (to modify Tolstoy) successful families are not all alike. Nussbaum further suggests that one advantage of starting with a global perspective is that it more readily reveals the many viable forms families can take (SSJ: 15). Such a perspective discloses “the parochial character of the Western nuclear family … these and other groupings have been involved in the rearing of children” (2003c: 504). By way of illustration, she underlines the value of women’s collectives in India: these forms of affiliation nurture women’s capabilities by building their confidence and providing education and sometimes financial assistance (WHD: 279, 281, 289).5 As this point also illustrates, when Nussbaum claims that governments should promote the capabilities of all their citizens, she does not require this to be done directly by the state. Providing support for groups within civil society is an acceptable and even desirable manner in which governments can fulfil this mandate. However, that it is done remains the state’s responsibility. As Nussbaum explains, “I have no objection to saying that the State could sometimes delegate part of its 193

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function to the private sphere when it judges that that’s sufficient, but … the State is the one that bears the final responsibility” (2007a: 4). Nussbaum’s belief that the government should support institutions and associations that promote the capabilities signals her agreement with Okin and Hampton that the family has no a priori status as a private institution, presumptively immune from state intervention (1999f: 23, 26; FJ: 321–2). She echoes forcefully the point made by Okin (and other feminists) that the modern family is a product of the law: “the state is present in the family from the start” (WHD: 263). The law defines which combinations of individuals can be regarded as families for the purposes of public policy and shapes the nature of many of their relationships to one another and to other institutions (WHD: 252, 261–3, 275–8; 1992a: 44; 2003c: 505–6). The idea that government non-intervention in the family necessarily respects freedom is therefore rejected by Nussbaum, as by Okin and Hampton. Nussbaum agrees that government inaction can effectively preserve situations of domination that should be unacceptable from a liberal point of view, given its commitment to individual equality and freedom: “To let things take their status quo ante course is to choose a course of action, not to be completely neutral” (WHD: 277). Failing to pass or enforce laws against domestic violence or, as in the case of India, having no law against marital rape, shows how government inaction can be illiberal (WHD: 261). If government is present in the family from the start, the crucial issue is not intervention or non-intervention, but what sort of intervention is beneficial. For Nussbaum this question is framed in terms of what means the state can use to shape families to support the capabilities of all their members (WHD: 244–5, 270, 278, 282). Reflecting her respect for pluralism and the importance of context and culture, she maintains that this cannot be answered in any universal way (WHD: 277, 281, 283). Nor does this license unbridled state involvement in the family: any intervention must be guided by the goal of capability promotion (WHD: 275). Hence her injunction that “adult freedom of association still supplies substantial limits to state interference with family life” (FJ: 212). Elsewhere she claims that the liberal dilemma consists in “how we may balance adult freedom of association, and other important interests in pursuing one’s own conception of the good, against the liberties and opportunities of children as future citizens” (2003c: 506).6 Given practical reason’s pride of place in the HCA, Nussbaum’s feminist liberalism also contains a self-denying ordinance on government involvement that might infringe personal autonomy.

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2. A NEW FRONTIER

As noted in Chapter 1, an important strand of the feminist critique of liberalism flowing out of the ethic of care debate is that liberal political theory cannot accommodate the fact of dependency. Yet as feminist critics of liberalism point out, everyone experiences some form of dependency at some stage of their life and, conversely, many people find others dependent on them at some stage. As Kittay insists, “Dependency is … a matter for us all in our lives as social beings” (1997: 221) and “must be faced from the beginning of any project in egalitarian theory that hopes to include all persons within its scope” (ibid.; cf. 235). A theory of justice unable to recognize, let alone accommodate, the fact of dependency and its implications for those who need, as well as those who provide, care, is seriously flawed (ibid.: 221). In FJ, Nussbaum agrees that the position of people with physical and mental disabilities is one of the three “unsolved problems of social justice” (FJ: 1).7 She asks to what extent the social contract tradition in general, and Rawlsian political theory in particular, provides normative and theoretical resources for addressing this challenge, and concludes that the HCA is better equipped to do so (FJ: 69–70). Judging social contract theories to be the strongest approach to justice currently available, she is reluctant to abandon this style of thinking altogether (FJ: ix, 3, 161). Indeed, one of the features that enables the HCA to incorporate the fact of dependency is a feature it shares with the Rawlsian and Kantian versions of contract theory: its commitment to the belief that each individual be seen as end in himself or herself, and that each person’s dignity must be respected by the major social and political institutions (FJ: 70–71, 127, 147, 149, 175, 177, 216, 221). She prefers to see the HCA as building on the best in social contract theories (FJ: 69, 71, 94–5, 177). Nussbaum specifies several ways in which the HCA has the edge over contract theories when it comes to including people with disabilities.8 Including those with disabilities in a theory of justice from the outset requires recognizing the “great asymmetries of power and capacity” (FJ: 92; cf. 87)9 that can exist, especially when people are profoundly and permanently disabled. The social contract tradition has, by contrast, constructed parties to the contract as free, equal and independent agents. While those in the OP lack many items of information about themselves, they are not encouraged to consider that they might be disabled once the veil of ignorance lifts (FJ: 112–13). Rawls does not ignore disability altogether but incorporates it into the later stages of his thinking about justice (FJ: 109, 123). Thus the design of the two principles is not undertaken with the possibility of disability in mind and questions associated with disability are not treated as questions of basic justice (FJ: 120, 123). Accentuating capabilities, the HCA interrogates what 195

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the distribution of social resources enables people to do, which introduces discernment among individuals’ needs into its theory of justice (Chapter 9, §1). This has enabled the HCA from the start to take account of the particular needs and capabilities of disabled individuals (FJ: 75, 88, 164; 2003c: 513). This also allows it to be attentive to the fact that people are disabled in different ways from one another, and should not be consigned to a homogeneous category. The HCA’s conception of personhood differs in a number of ways from that of the social contract tradition. The latter has tended to work with a rationalist conception. This is more evident in Kant than in Rawls, but there is a powerful rationalist component to the Rawlsian conception of selfhood nonetheless (FJ: 130–33, 150, 216, 221). The HCA, by contrast, does not prioritize reason, but sees the person as also a needy dependent animal (FJ: 87–8, 92, 160, 182). Each person’s dignity comes not from possessing reason or independence but from the fact of personhood.10 Dependency or impairment does not, therefore, rob individuals of their dignity (FJ: 218). All people are not equally needy all the time: rather, need and dependency wax and wane over the course of most people’s lives. As babies, as children, as old people and during illness, all people experience dependency. The fact that all humans experience some form of dependency at some stage of their life also allows for the creation of a continuum, which includes disability at various points along it (FJ: 127, 133). But this attention to dependency does not lead Nussbaum to downplay the importance of practical reason, for she continues to insist that persons with mental and/or physical impairments be enabled to exercise the maximum choice and agency they are capable of (FJ: 88, 218–19). Another way in which the HCA’s conception of the person departs somewhat from that of the social contract tradition is by holding persons to care about justice for its own sake. The HCA imagines individuals who are willing to measure the benefits of social cooperation not just in terms of mutual advantage but also in terms of providing justice to all (FJ: 89, 156– 7). Nussbaum further claims that persons feel compassion for the suffering of other members of society (FJ: 91, 156–7). Shortly after, she makes human motivation even more focused on the good of others, claiming that part of any individual’s understanding of the good is a concern with the good of others (FJ: 158). These features of personhood also make the HCA more hospitable to claims by disabled people to justice than is traditional social contract theory. Another way in which the HCA has the edge over contract theories when it comes to including people with disabilities is its emphasis on “care as a social primary good” (FJ: 2). The social contract tradition has typically relegated caring activity to the family and located the family in the private sphere 196

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where it is notionally (albeit selectively) free from public interference and attention. Nussbaum follows her fellow feminist liberals in rejecting this version of the public–private separation. Including care in the HCA makes it a matter of public concern (WHD: 249). But rather than presenting care as a separate capability, she underscores its ubiquity, showing it to be an important part of human life that takes many different forms and manifests itself in many different contexts (FJ: 168–9, 171). However, she does not demonstrate her claim about care being connected to each of the capabilities in any detail. And it is unusual that one of the parts of the framework as articulated in WHD that could readily be associated with care has dropped out of FJ. In WHD, capability 7, Affiliation, part A, included having compassion for the situation of another (WHD: 79). This has been deleted from FJ’s list of capabilities.11 Perhaps Nussbaum thinks that adding compassion explicitly to her conception of the person makes it redundant as part of the capability for affiliation. It cannot be denied that Nussbaum takes the dependency critique very seriously and strives to demonstrate that the HCA can incorporate dependency into its theory of justice. As she says, citing Kittay: care for children, elderly people, and people with mental and physical disabilities is a major part of the work that needs to be done in any society, and in most societies it is a source of great injustice. Any theory of justice needs to think about the problem from the beginning. (FJ: 127) While Nussbaum does not endorse every aspect of Kittay’s approach,12 the important thing for present purposes is just how seriously she takes the dependency critique of liberalism. Nussbaum does not, for example, make care a third principle of justice in the way Kittay suggests.13 However, substantively, she aims to include the key normative concerns in Kittay’s critique, such as “our unequal vulnerability in dependency … the moral power to respond to others in need, and … the primacy of human relations to happiness and well-being” (Kittay 1997: 252). Nussbaum agrees that caring work should be held in much higher social esteem; one of the reasons for its being undervalued is that it has for so long been seen as women’s work (FJ: 212). She seems to recommend something like a public education campaign14 to change both these perceptions, by underlining that caring work is invaluable to society and is the responsibility of all individuals.15 Such an effort “should lead to more respect for the work involved in care, and thus to more public willingness to spend money on it and deliberate seriously about it as a public issue” (FJ: 214). She also calls for “the transformation of the workplace, through new flexibility and new ethical norms” (FJ: 215). Nussbaum 197

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has in mind here not simply the provision of leave or other forms of time off or flexibility for caring work, but also a change of attitude so that availing oneself of these options does not signal lack of commitment to one’s career or interest in workplace advancement.16 Indeed, Nussbaum’s point about the sort of changes needed in attitudes about whose responsibility care is and how to balance it with paid work effectively reiterates some of Okin’s policy proposals (Chapter 2, §3).

3. UNTRUSTWORTHY AND COMPROMISED

Nussbaum’s moral individualism, her rejection of the idea that the family should be seen as a private entity, her belief in the state’s responsibility to promote the capabilities and the importance she attributes to care in all the capabilities indicate that she follows Okin and Hampton in questioning liberalism’s traditional demarcation between public and domestic spheres. However, questioning this demarcation does not lead Okin to jettison the traditional liberal value of privacy. She continues to give normative weight to this, in so far as privacy becomes a genuinely individualized good (Chapter 3, §5). WHD says little explicitly about the value of privacy, although at one point we read that, in the HCA, “Individuals have privacy rights, in the form of associative and decisional liberties” (WHD: 245). This suggests that Nussbaum’s position would parallel Okin’s on privacy becoming an individualized good. Many of the things that typically fall under the rubric of privacy are, moreover, captured by a number of the capabilities. Part of capability 10, Control Over One’s Political and Material Environment, includes freedom of association, while part B refers to property rights and freedom from unwarranted search and seizure (WHD: 80). Capability 2, Bodily Health, includes reproductive health. In a footnote Nussbaum details her expansive understanding of this, endorsing “the freedom to decide if, when, and how often” to reproduce. She also supports “information and access to family planning methods” of one’s choice, and the ideal of “every pregnancy” being intended (WHD: 78 n.83). Capability 3, Bodily Integrity, also covers “choice in matters of reproduction” (WHD: 78). Either of these capabilities would therefore protect women’s reproductive freedom, including access to abortion, making an appeal to privacy unnecessary for this purpose.17 Some of the things normally associated with the value of privacy are therefore accounted for in other terms by the HCA. It is curious that Nussbaum does not mention religion in discussing privacy, for it has also typically been deemed by liberals to be a private activity and, when conducted in groups, for those groups to be considered private associations. She could say that commitments to liberty of conscience and freedom of association would provide religion with the same protection it 198

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currently enjoys under the mantle of privacy. Religious freedom is also covered by a number of the capabilities, as argued in Chapter 9. In “What’s Privacy Got to Do With It? A Comparative Approach to the Feminist Critique”, Nussbaum offers a more searching account of the value of privacy and reveals deep scepticism about retaining even a renovated understanding of privacy as a feminist liberal value. Starting off as “disputed and murky” (2003a: 153), privacy ends up as “that most untrustworthy and compromised of concepts” (ibid.: 173). Nussbaum warns of “the dangers for women of jumping on the privacy bandwagon” (ibid.: 167), believing that the concept is “useless for legal and political purposes … [and] particularly ill-suited and even pernicious in advancing the interests of sex equality” (ibid.: 154). Nussbaum’s low estimation of privacy puts her in the company of radical feminist critics of liberalism and represents an important difference between her feminist liberalism and Okin’s. As Nussbaum depicts it, the appeal to privacy has typically covered two sorts of things: places, such as one’s home, usually thought of as private property; and relationships – marital and parental, for example. The first has typically been used to reinforce the second, so that the home is the family’s private place where members should be free to relate to one another without government interference and which government officials are not free to enter without permission. Yet she points out that many of the activities we consider private are not intrinsically linked to place. We typically consider sexual activity between or among consenting adults to be private, no matter where it happens. Many deem the use of contraception by a person above a particular age to be a private matter, irrespective of where it occurs. If privacy rights are necessarily connected to the home, we would have to conclude that people who are homeless have no right to privacy. Conversely, if an action harms others, it is no longer entitled to be considered private, irrespective of where it happens. For all these reasons, Nussbaum recommends resisting the temptation to think of privacy in spatial or locational terms (ibid.: 167–9). It is more helpful to think of the things we typically take to be private in terms of liberty and equality, for when regarding the individual only, privacy is associated with free choice and the liberty we should enjoy in self-regarding actions (ibid.: 167). When involving more than one individual, privacy is associated with equals freely consenting to engage in particular activities together. Nussbaum thus suggests that privacy is probably redundant as a value; the valuable things it is supposed to protect can be brought under the aegis of other, less troublesome, concepts. The appeal to individual liberties could defend freedom from search and seizure, freedom of movement and association, and the ability to control public use of information about oneself (ibid.: 154–6). Appealing to autonomy could prevent others from entering or 199

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looking into one’s domestic space (ibid.: 157–8). Of course privacy has been also invoked to defend women’s reproductive freedoms. In the US in particular, a right to contraception and to abortion have been supported under its rubric. This would seem to lend the concept great significance for most forms of feminism. Yet Nussbaum contends that the same goals can be achieved by autonomy and individual liberty (ibid.: 162–3, 168, 170, 172). Overall she concludes that some combination of (i) equality and equal protection, (ii) self-regarding actions and (iii) specific notions of liberty can do much of the normative and legal work hitherto done by privacy (ibid.: 172–3). As indicated above, Nussbaum’s assessment of the value of privacy follows what is typically taken to be the radical feminist critique of this idea. She invokes and endorses the work of MacKinnon18 and Andrea Dworkin on privacy, affirming also Pateman’s view. All have argued that the appeal to privacy has traditionally been used to protect men’s power over women in the domestic sphere. For them, the idea of privacy seems to be inseparable from the traditional public–private distinction, which has worked to disadvantage women (ibid.: 161–2, 166). Thus, unlike Okin and some other feminist liberals, Nussbaum finds no redeeming features in the conception of privacy that warrant its reformulation: “Privacy is inherently a retrograde value, linked with the idea of a protected patriarchal sphere of authority” (ibid.: 167). It is unfortunate that, in reaching her conclusion about the redundancy of privacy, Nussbaum did not engage feminist liberal defences of this value, for her repudiation would have been more convincing had she shown why feminist liberal attempts to rehabilitate privacy should fail. McClain’s (1999) feminist liberal defence of privacy, for example, is mounted in full awareness of feminist objections to this concept, allowing her to distinguish good from bad forms of privacy. It would also be helpful for Nussbaum to discuss whether the debate about information and communication technologies in modern life can be fruitfully conducted without any appeal to privacy. Both McClain and Anita Allen take these developments into account in their defences of privacy, with McClain in particular discussing the opportunities for self-exposure and sexual exploration made available by the internet. But it is also helpful to consider here involuntary forms of self-exposure, such as the phenomenon of “sexting”, where female adolescents photograph themselves naked or scantily clad. Some send these pictures to boyfriends, some of whom then circulate them more widely without the girls’ permission and typically to their consternation. Allen’s work suggests that this could fall under an idea of “propriety privacy” by which she means “control over names, likenesses, and repositories of personal identity” (2004: 133). Nussbaum implies, as we saw above, that the appeal to individual liberties could defend the individual’s ability to control the public use of information about himself or herself. Indeed, Allen’s observation that “The liberal conception of 200

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privacy as freedom from unwanted disclosures, publicity, and loss of control of personality … closely links privacy to freedom” (ibid.: 149) could point to a way of using an idea of liberty to criticize such dissemination. Or it might be that capability 3, Bodily Integrity, with its insistence that “one’s bodily boundaries [be] treated as sovereign” (WHD: 78) covers the involuntary dissemination of naked photographs.19 Or capability 10, part B, Control Over One’s Material Environment, could be construed to cover this, but cyberspace is not usually thought of as a material environment. Another instance where privacy seems to be the most apposite concept comes in the case of the late Nikki Catsouras, a young woman killed in a car accident. Graphic pictures of Catsouras’s mangled condition while still in the crashed vehicle appeared on the internet, much to her family’s distress. The family is seeking legal means to have the pictures removed on the grounds of family privacy. Once again, it is hard to see how the harm done by these pictures could be captured by reference to liberty, equality or autonomy alone, for in this case it is not the individual’s ability to control the public use of information that is at stake. That individual is dead. Nor is it immediately clear which of the capabilities could be invoked to acknowledge the family’s legitimate desire to remove these pictures of their late daughter/sister from public gaze. Capability 10, part B, Control Over One’s Material Environment, could be interpreted broadly to cover this, but the aforementioned problem – that cyberspace is not usually thought of as a material environment – persists. Once again, something like Allen’s concept of “propriety privacy”, covering control over names, likenesses and repositories of personal identity, seems necessary. An appeal to the family’s privacy in a case like this also illustrates the value of distinguishing between privacy as an individualized good and privacy as a group value. The Catsouris case seems to be one in which all members of the family have a common interest in protecting their late daughter’s/sister’s image. So families can sometimes have a shared interest in a good we can call family privacy, but Okin has taught us not to automatically assume this and to see that family privacy is no tautology. In light of the two examples mentioned here, it is interesting to consider Nussbaum’s acknowledgement that “Control over information about oneself [is] the aspect of a constitutional right to privacy most reasonably denominated ‘privacy’” (2003a: 172).20 Having mentioned the areas of law that can be drawn from to protect what Nussbaum admits can be called “privacy rights”, she concludes that it is nonetheless inappropriate “to speak of a unitary ‘right to privacy’” (ibid.: 172–3). This recognition that an appeal to privacy rights in the plural can fulfil some valuable, and perhaps unique, function qualifies her claim that feminist liberalism can dispose of the concept of privacy. Untrustworthy and compromised, perhaps. Dispensable? Not so much. 201

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4. WHAT ROLE FOR THE STATE?

The HCA accords a central role to the state: it lays out a suite of capabilities that all governments should guarantee for their citizens to a minimal level. From this it should not be inferred, however, that Nussbaum is sanguine about any and all forms of government intervention in citizens’ lives: as a liberal, she wishes to preserve and defend a range of important individual freedoms. She asserts, for instance, that “there are associational liberties of individuals, and liberties of speech, that should always be protected for citizens, in any context” (WHD: 280). Many of the capabilities that governments should provide actually free citizens from, or empower them to resist, excessive government control or influence over their lives. As this suggests, the HCA explicitly incorporates many political values typically associated with the liberal tradition. These include freedom of movement and bodily integrity (capability 3); free expression with regard to political and artistic speech and religion (capability 4); liberty of conscience (capability 6); freedom of assembly and political speech (capability 7, part A); freedom from discrimination on the bases of race, sex, sexual orientation, religion, caste, ethnicity and national origin (capability 7, part B); and the right of political participation, along with protection of free speech and association (capability 10, part A). Moreover, as Chapter 9 indicates, one of the reasons Nussbaum confines herself to opportunities for, rather than exercise of, the capabilities is to leave individuals free to develop as they choose. Were the government charged with ensuring functioning rather than capabilities, massive state involvement in citizens’ lives would be needed. In the unlikely event that states could do this effectively and efficiently, it would still represent, for a liberal like Nussbaum, an unacceptable level of state intervention in individuals’ lives. And although she attributes little value to the concept of privacy and is powerfully attuned to the important ways in which families cultivate (or fail to cultivate) children’s capabilities, Nussbaum does not permit the state to intrude willy-nilly into family life. She insists, as we have seen, that “Adult freedom of association still supplies substantial limits to state interference with family life” (FJ: 212). Even though she shares Okin’s concern with unequal distributions of domestic labour, she does not want state intervention to rectify this either: “My approach would forbid certain types of interference in the family structure … it is wrong for the state to mandate the equal division of domestic labor or equal decision making in the household” (WHD: 279; cf. FJ: 212). As this intimates, despite her use of the HCA framework, the essentials of Nussbaum’s position on state involvement are very similar to those of Okin and Hampton. All are alert to the fact that government non-intervention in certain realms or activities can amount to tacit endorsement of unfree and unequal conditions for some. In such cases, commitment to liberal values 202

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can require a government to act, rather than to refrain from acting. Any intransigent stance against government action could actually violate liberal values and effectively align the government, which is supposed to uphold these values, with those who would deny liberty and equality to all. Here Nussbaum thinks that liberalism has much to learn from feminism, for attention to such things as domestic violence and marital rape shows that liberty, equality and dignity can be violated in the household. The liberal state should listen, learn and act, correcting these abuses through “laws and … moral education” (1999f: 25). But her recognition that sometimes government can intervene to promote liberty and equality for individuals does not legitimate unbridled state involvement in all aspects of life. Nor does it mean that the state can solve all the issues of injustice or inequality or unfreedom in individual’s lives. Nussbaum’s discussion of pornography, in particular, and sexual acts that objectify the self and others, in general, warrants consideration here. Applying Millian logic to sexual acts between or among consenting adults, she proposes that only those harming others should be restricted. And she follows Mill in insisting that causing offence does not qualify as harm. Nussbaum concludes that sodomy and fornication should not be criminalized whereas marital rape should be, because rape, by definition, precludes the consent of all parties (SSJ: 22). When it comes to pornography, she agrees in part with the feminist critique mounted by Dworkin, MacKinnon and others, according to which pornography does not qualify as a harmless, or merely self-harming, activity among consenting adults.21 Heterosexual pornography reflects and perpetuates the idea that women are there for men’s pleasure and service: women are portrayed as commodities rather than endsin-themselves. This encapsulates the wider cultural eroticization of hierarchy according to which masculine sexuality is associated with domination and feminine with submission and subordination. Heterosexual pornography can thus harm third, non-consenting parties by reinforcing damaging stereotypes about women’s status and function (SSJ: 23, 225, 234, 354). There is a “moral problem in the representation of women as meant for abuse and humiliation” (SSJ: 249; cf. 250) and Nussbaum remains unpersuaded by the free speech defence of pornography. Many forms of speech are restricted, and there is no compelling reason why pornography should not be curbed in some way, given its harm to non-consenting third parties (SSJ: 247). But while Dworkin and MacKinnon have identified the correct target in the harm that pornography does to women, they have chosen the wrong weapon for attacking this (SSJ: 23). Nussbaum voices a number of reservations about their attempt to implement a civil ordinance against makers of pornography. Part of her concern is consequentialist: such a law is likely to be badly implemented and could be used to suppress other forms of sexually 203

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explicit speech, including feminist critiques of pornography (SSJ: 23, 249).22 This is part and parcel of a wider insensitivity to context that she detects in Dworkin and MacKinnon’s critique of sexual activities they deem degrading to women. They seem to assume that actions have meaning in themselves, rather than acquiring meaning through context (SSJ: 249). Nussbaum also detects some flaws in their thinking about cause and effect, for it can be hard to draw a clear link between making and disseminating pornography and harm done to particular third-party individuals (SSJ: 248). As Dworkin and MacKinnon freely admit, pornography is not the only source of ideas about using and abusing women (SSJ: 247), rendering it difficult to declare with confidence that pornography caused any particular act of abuse against a woman. Nussbaum is also unsure whether makers of pornography should be held responsible for the violence others might commit having consumed it (SSJ: 248). She raises these issues as part of a larger discussion of the meaning of objectification and an attempt to distil when and why treating other people as means to our ends might be morally wrong. She does not, to my knowledge, rule out the idea of a better-drafted law being developed to deal with the harm pornography generates, so it is hard to conclude definitively whether pornography is for her a troubling social practice that should be combated by the law or by other means alone.23 Nussbaum also raises the issue of prostitution and agrees that, as an institution, heterosexual prostitution harms women (SSJ: 23). She concludes, however, that it should not be criminalized, and, as her analysis unfolds, prostitution appears less and less harmful. Nussbaum frames prostitution primarily as a labour issue, with the most urgent challenge it raises being “employment opportunities for working women and their control over the conditions of their employment” (SSJ: 278).24 Her preferred approach to ending or limiting prostitution is to use indirect means by providing better paying jobs and educational opportunities so that prostitution does not present as some women’s best employment option (SSJ: 278, 297). However, as this implies, if a person freely chose to work as a prostitute in the face of viable alternatives, Nussbaum would accept that: “The fact that a woman with plenty of choices becomes a prostitute should not bother us provided there are sufficient safeguards against abuse and disease, safeguards of a type that legalization would make possible” (SSJ: 278). In contrast to her discussion of pornography, and the opening of her discussion of prostitution, Nussbaum’s conclusion is conveyed in tones traditionally associated with feminist liberalism and its focus on personal choice. Her claim that most people sell bodily services – lawyers, professors, prostitutes, factory workers and doctors – paints prostitution as far less objectionable than it is to radical feminists. It also fails to confront the claim by MacKinnon (2010: 505–6) and others that most workers in the sex industry were sexually abused as children, which 204

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compromises any claim about prostitution as a free choice. Overall, Nussbaum does not really seem to buy the radical feminist reading of heterosexual prostitution as yet another manifestation of men’s dominance and women’s submission.25 Her claim that “some of our feminist theory may be insufficiently grounded in the reality of working-class lives and too focused on sexuality as an issue in its own right” (SSJ: 278) could even read as a rebuke to radical feminism. Nussbaum also freely admits that there are many sexual activities that she disapproves of at a moral level but which it would not be appropriate to criminalize. “Many bad things aren’t, and shouldn’t be, illegal” (SSJ: 248; cf. 22). She shares her fellow feminist liberals’ reluctance to turn too readily to the state to implement their agenda. Although they might encourage more, as well as more consistent, state intervention in society, economy and the household than many of their fellow liberals, they also want to protect a sphere of freedom for all individuals. While the state has a role to play in enabling individual freedom, it cannot mandate what individuals do with that freedom, nor how they forge their conception of the good, nor what conception they forge. Okin, Hampton and Nussbaum are in considerable agreement in their views about the proper role of the state. This is notwithstanding the different ways in which they stand relative to the Rawlsian distinction between political and comprehensive forms of liberalism. Chapters 13 and 14 examine that issue, whereas the coming chapter situates the three major feminist liberals studied here vis-à-vis the feminist critiques of liberalism outlined in Chapter 1.

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IV. CONTEMPORARY FEMINIST LIBERALISM

12. IN THE COMPANY OF CRITICS: FEMINIST LIBERALISM MEETS FEMINIST CRITICS OF LIBERALISM

Rawls is right to say that both his theory in particular and liberal theories of justice more generally have powerful responses to feminist concerns. (Nussbaum 2003c: 488) [C]onsistent and fully developed liberalism, quite radically revised so as to include women, has great potential for feminism. (Okin 2004: 1546) This chapter synthesizes the feminist liberal responses to feminist critiques of liberalism. Returning to each major strand of critique identified in Chapter 1, it considers to what extent Okin, Hampton and Nussbaum are cognizant of, and receptive to, these concerns.1 It demonstrates that as feminist proponents of liberalism they are not blind to the many and powerful criticisms of the liberal tradition emanating from feminist scholars over the past three decades. Indeed, in many cases they share them. For the feminist liberals, however, the issue is whether liberalism contains the theoretical and normative resources to redress these blind spots. They believe that it does: or that it can go a long way in this direction. They therefore take feminist critiques of liberalism very seriously but aim to show that the best response is to reconfigure, rather than reject, liberalism. Their work further suggests how productive liberalism’s internal pluralism, the multiplicity of values to which it subscribes, can be, for these feminist liberals typically use some aspects of liberalism to challenge others.2 As Hirschmann observes, “feminists keep getting drawn back into liberalism in some form. Most feminists at least implicitly agree that the ideals of freedom and equality, so central to historical liberalism, are also historically important to women” (1999: 31). Chapter 1 noted that an interesting aspect of many of the feminist critics’ relationship to liberalism was that they did not repudiate it entirely. They hold out the possibility of a reconfigured 208

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liberalism that would be more reflective of women’s experiences and responsive to their needs. This chapter considers whether the feminist liberals discussed here offer the sort of rapprochement between liberalism and feminist concerns entertained by some of liberalism’s feminist critics. Pateman, however, is one feminist critic who refuses to be drawn into the liberal fold, and so a consideration of her reasons for this is given. The chapter closes with a discussion of the role of ideal theory in social and political criticism which engages Schwartzman’s critique of liberalism and Charles W. Mills’s views on the radical potential of the social contract tradition.3

1. THE SOCIAL–SEXUAL CONTRACT

Pateman identifies a sexual contract accompanying the liberal social contract, which tacitly justifies women’s subordination to men. While none of the feminist liberals canvassed in this book would gainsay the claim that “Liberalism’s past is deeply and, for the most part unambiguously, patriarchal” (Okin 1989c: 40), they believe that it is possible to have a liberal social contract without a sexual contract. Consider Okin’s revision of the OP according to which one’s sex is unknown behind the veil of ignorance. Stripped of this information, contractors would construct a society free of the subordination of women that continues to characterize so many liberal societies. Consider Hampton’s proposal to use the contract method to highlight forms of disrespect, exploitation and injustice in intimate relationships. She does this with full knowledge of, and some sympathy for, feminist reservations about the contractarian tradition. She submits, nonetheless, that all manner of human connection can be illuminated with the contract device. Contractarian thinking can not only shine a light on caring relationships that might be exploitative for the carer but also serves as a consciousness-raising device by encouraging individuals to see themselves as ends in themselves. The feminist liberals surveyed here maintain that unless and until contractarian thinking views women as equal participants in, and beneficiaries of, the social contract, liberalism cannot be truly liberal. A feminist critic of liberalism such as Eisenstein believes, by contrast, that liberalism is incapable of shedding the patriarchalism that has characterized its past. The liberal state protects patriarchy, capitalism and racism (Eisenstein 1981: 223–4). Eisenstein asserts, but does not show, that each of these features is an insuperable part of liberalism. She underscores how much social change would be needed were the liberal value of gender equality to be thoroughly pursued across all dimensions of life: It is not enough to ask men to help rear children without understanding that one is speaking of a fundamental reorganization of 209

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society. This will involve men in the equal sharing in the responsibility for child care. The entire social organization of the way people live their lives, as well as think about them, is involved. The organization of wage labor, the relationship between home and work, the conception of public life, and the definition of masculine and feminine have to be completely rethought and restructured. (Ibid.: 187) Pateman makes a similar point: There is nothing in nature that prevents fathers from sharing equally in bringing up their children, although there is a great deal in the organization of social and economic life that works against it. Women cannot win an equal place in democratic productive life and citizenship if they are deemed to be destined for … one ascribed task, but nor can fathers take an equal share in reproductive activities without a transformation in our conception of “work” and the structure of economic life. (1989: 222–3) The feminist liberals surveyed in this book share these sentiments but see them as challenges for, not to, liberalism. They agree that “the real equality of women with men … would dislodge the patriarchal structure necessary to a liberal society” (Eisenstein 1981: 6). Indeed, the first part of Eisenstein’s claim here is probably true by definition. So the real difference derives from the fact that feminist liberals do not believe this structure to be a necessary component of liberalism. They contend, on the contrary, that patriarchal liberalism is a failure, rather than a realization, of liberalism. Okin’s review of The Sexual Contract reports that Pateman’s analysis of “the double day of the wage-working wife and the assumptions that structure the workplace to suit the needs of men with wives at home … is valid and valuable” (1990b: 664–5). By that book’s conclusion, however, she is left wondering how these problems should be addressed (ibid.), for Pateman fails to “spell out, beyond a few vague suggestions, what form of political theory or practice might liberate women and men from the problems of liberal individualism and contractual relations and [how we] might ‘begin to create a free society in which women are autonomous citizens’” (ibid.: 659; cf. 660, 665, 668–9). Unconvinced by Pateman’s claim that all theories built around the notion of freely contracting individuals necessarily assume the subjection of women (ibid.: 659), Okin fears that “Pateman gives up too easily on the potential uses of contract for feminism” (ibid.: 666). Respecting Pateman’s analysis, Okin strives instead to justify the sort of social changes she thinks necessary for gender equality from within her liberal framework. 210

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The issue between the feminist liberals on the one hand and critics such as Eisenstein, Pateman and MacKinnon (2001: 709–10) on the other, is how much social change a liberal society can tolerate or perhaps legitimate. The feminist liberals studied here all believe that liberalism, when applied consistently to gender issues, mandates extensive social change.4 For Eisenstein, this is constrained by liberalism’s connection with capitalism but these three feminist liberals follow Rawls by unhooking liberalism from the free market and treating liberalism primarily as a set of political ideals.5 These ideals have, to be sure, economic implications, with the feminist liberals studied here sharing and probably extending Rawls’s belief that a truly liberal society requires considerable redistribution of wealth in the service of equal opportunity.6

2. SEPARATING PUBLIC AND PRIVATE

A major problem that many feminists have with the liberal tradition stems from the belief that liberalism is committed to the analytical and normative separation of the public and private realms and perpetuates the traditional association of women with the latter. The three feminist liberals canvassed in this book concur with liberalism’s feminist critics that the public–private distinction has either masked or justified men’s power over women in the domestic sphere. They agree that traditional renderings of this divide are highly troublesome and demand careful scrutiny. All three question any public–domestic separation analytically by claiming that what does or does not happen in the public realm affects the household and vice versa. Any attempt to isolate the household as part of the private sphere falls foul of Okin’s insistence, from the start of her work, that the functional view of women has informed not just conceptions of family but also the understanding and operation of other major institutions such as education, the paid workplace and representative politics. The close connection between the workings of the household and other institutions also explains her adamance that the family cannot be reformed in isolation. Hampton and Nussbaum join her in identifying the flow on, or spill over, effects of women’s treatment in the household. Okin and Nussbaum echo other feminists in underscoring the powerful ways in which the political realm shapes and defines the family, portraying the family as a primarily legal construct, rather than any sort of natural or non-political entity. Okin and Nussbaum also follow what they take to be Mill’s lead in pointing to the family’s role as the first training ground for citizenship, and so emphasize the importance of inculcating liberal values early and often. Nussbaum argues that traditional rights discourse has neglected the needs of women because of the artificial liberal separation between public and private (2005; FJ: 290). 211

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Okin suspects that one of the reasons liberal defenders of group rights have ignored the issue of gender has been their inattention to the private sphere, which has traditionally, albeit selectively, been treated as if it were beyond the purview of politics. For all these reasons, it cannot be said that contemporary feminist liberals perpetuate any strict or strong analytical public– private separation. Each of the feminist liberals surveyed in this book is also sceptical of any strong normative separation between these spheres. They are just as troubled by gender inequality and discrimination in the domestic as in the public realm. Thus one of Okin’s fears about the group-rights debate is its neglect of women’s freedom and equality, or threats to this, in the private sphere. These feminist liberals also apply liberal values and standards to the household. As Nussbaum insists “Personal liberty is a central social goal, whether or not it is exercised inside the home; personal dignity and integrity are also central social goals, no matter where the threat to them is located” (WHD: 245; cf. 277). Pressure is placed on any strong normative separation between public and domestic by Hampton’s use of liberal terminology to describe rape, spousal abuse and unfair divisions of domestic labour as equality-denying and liberty-limiting. Liberalism’s commitment to moral individualism enables feminist liberals to argue that any threat to individual flourishing, whatever its provenance, should be of concern. As Nussbaum says, “persons are persons, and violation is violation, wherever it occurs” (FJ: 253). The household cannot be cordoned off as an arena of private activity; its dynamics are just as relevant to liberalism as those of the public sphere. Consider here Nussbaum’s insistence that “Despotism must be curtailed by laws protecting the equality of citizens, whether or not this despotism occurs within the family” (1999f: 26). Okin, Hampton and Nussbaum all extend liberalism’s moral individualism to family life, urging that the family not be treated as a conglomerate but be acknowledged as comprising discrete individuals, each of whom has their own goals and interests that might, on occasion, come into conflict with those of other family members. This extension of liberal values to the household is dramatized by Hampton’s application of the contract metaphor to intimate association. These feminist liberals also aim to promote, as far as appropriate, the values of justice and mutual respect in the family. They do so both because these values are important in their own right and because of the family’s educative function. So while none of the feminist liberals insist that there are no differences between the two spheres, the public–domestic distinction does not license the neglect or overriding of central liberal values in the household. They are just as wary of unreflective appeals to this separation as are liberalism’s feminist critics. Practising immanent critique, they typically invoke (some of ) liberalism’s own values – liberty, equality of 212

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personhood and opportunity, dignity, moral individualism, attack on arbitrary power – to question any rigid public–private distinction.

3. LIBERALISM REMAINS GENDERED

Many feminists see liberalism’s patriarchal beginnings as living on today, so that liberalism remains a gendered tradition. The purportedly neutral liberal subject is actually a masculine figure. The feminist liberals studied in this book are highly receptive to these concerns. MacKinnon’s famous passage about the (usually) invisible masculine norm (Chapter 1, §3) is endorsed by Hampton, who glosses the passage by referring to the liberal state’s role in reinforcing affirmative action for men through the belief that the state should not interfere in the family (1996: 21–2; 1997a: 202). Yet the feminist liberals studied here would argue that in so far as liberalism requires women to become like men in order to be fully fledged liberal subjects, liberalism is failing itself. Its commitment to equal moral personhood must rule out any a priori, gendered standard of what it is to be human. If women have to conform to a masculine standard to be considered human, they are not being treated equally. Okin (Chapter 5, §5) and Nussbaum (SSJ: 13–14; 1999f: 27; FJ: 290) both point to the international “women’s rights as human rights” movement to speak directly to this issue of how irretrievably masculine the subject of liberal rights is. They welcome the ways in which women across the globe have appropriated human rights discourse to make it less masculine and more fully human by incorporating the ways in which women need protection into rights discourse. This movement illustrates very practically that, irrespective of its origins, rights discourse is not irredeemably masculine but can be deployed by women for their own purposes, to defend things such as the individual’s right to freedom from the fear of domestic and sexual violence.7 Although a staunch critic of liberalism as a gendered doctrine, MacKinnon herself applauds the way women across the globe have made human rights discourse more relevant to and inclusive of their experiences. She congratulates this movement for “beginning to make human rights an honest term” (2006: 2). Through women’s activism, “sex equality is moving toward recognition as a peremptory norm at the highest level of international principle” (ibid.: 10). She summarizes this development in an illuminating way, declaring that: A worldwide movement of women … is remaking equality … The equality … is not premised on being the same as men, but on ending violation and abuse and second-class citizenship because one is a woman … From this work has come a concept of equality as lack of hierarchy rather than sameness or difference … a refusal 213

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to settle for anything less than a single standard of human dignity and entitlement. (Ibid.: 107–8, emphasis added) Given her scepticism about liberalism, the process MacKinnon depicts is striking: even though she might not describe it in this way, she effectively portrays women as taking the terms, values and concepts available in the liberal tradition and turning them to their own purposes. It is a revisioning, rather than repudiation, of liberalism, which holds out the hope that “human rights can give back the humanity the rapist takes away” (ibid.: 14; cf. 105).8 MacKinnon’s commentary on the aims and achievements of the women’s rights as human rights movement strikes me as identical to that of Okin and Nussbaum. All identify, and condemn, the ways in which women are de facto (and sometimes de jure) second-class citizens. They reject the idea that women must become like men in order to enjoy the promise and protections of rights discourse.9 They agree that just because rights discourse has been made by men, it does not have to remain for them. Instead, its emphasis on equality allows rights discourse to be turned by women to their advantage. The attack on the idea of natural or undeserved hierarchy, which has been one of liberalism’s key commitments from the start, provides a potent resource for women rejecting subordination to men. And in this passage at least, MacKinnon shares the hope that feminist liberals invest in the ideal of human dignity as a way of criticizing unjust social relations.10

4. STRUCTURES OF POWER

A number of feminists have held that because liberalism pictures people primarily as atomized, autonomous individuals, it lacks resources for analysing oppression in class or group terms. This renders it useless for feminist purposes, given feminism’s traditional attention to the ways in which women suffer inequality, injustice and exploitation on the basis of gender. This concern is evident in Eisenstein’s work, but it is not entirely clear from her analysis where the problem with liberalism’s individualism really lies. She does not seem to reject individualism as a value but only as a mode of analysis and explanation. She contrasts liberalism with the feminist theory of individualism, which recognizes “the individual character of our social nature and the social nature of our individuality” (Eisenstein 1981: 191).11 Contemporary feminist defenders of liberalism believe that liberalism can accommodate both dimensions of individuality, firmly rejecting the equation of the liberal self with any atomized individual. Thus in WWPT, Okin indicated that she was not proposing any continuation of the atomized, self-interested conception of individualism commonly associated with liberalism. She endorses moral 214

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individualism rather than ontological atomism (WWPT: 283–5). Hampton agrees that liberals do not “deny the sociality of human beings” (1997a: 188), while Nussbaum points out that some liberals, such as Mill and Rawls: have an evidently social and other-inclusive psychology, building … affiliation with and need for others into the very foundations of their accounts of human motivation, and denying that individuals can satisfy their basic desires independently of relationship and community. (1999f: 19; cf. 21–2; Wendell 1987: 73–6; McClain 1991–92) Feminist liberalism’s moral individualism does not lead its exponents to underestimate the reality, importance or value of human connection. It does, however, shine a light on the quality of that connection. However, as Schwartzman correctly points out, recognizing the sociality of individuals does not amount to acknowledging the existence and influence of structures of power. It is one thing to respond to a communitarian-style critique of the atomized individual and quite another to show that liberalism recognizes the presence and power of oppressive structures in a society. Schwartzman remains critical of the individualism of contemporary liberalism on these grounds: it must be oblivious to the many and varied ways in which individuals are treated because of their membership of groups, and in particular on the basis of gender (2006: 7). Yet Schwartzman’s criticism misrepresents the function of individualism in contemporary liberalism. The individual is the moral, rather than the analytical, centre of much current liberalism,12 with the promise of equal freedom for all being its regulative ideal. Schwartzman finds liberalism’s methodological individualism to have infected Nussbaum’s feminism, which employs “an individualistic methodology for identifying and attacking women’s problems” (2005: 159; 2006: 95, 104). But Schwartzman again mistakes moral for methodological individualism.13 The feminist liberals surveyed here are more than willing to generalize about the condition of women. And Nussbaum’s generalizations are more encompassing than many of Okin’s and all of Hampton’s, because her feminism has, from the start, surveyed the scene of gender inequality globally. Okin, Hampton and Nussbaum all insist on doing what feminist critics of liberalism insist it cannot: enquiring into the social forces that affect women as a group or collective. Schaeffer argues that one of the things MacKinnon has attempted with her analyses of sexual harassment and pornography is to educate liberals to see harm in new places (2001: 705–6). These lessons have been thoroughly absorbed by the feminist liberals studied here. When describing what contractors behind the veil of ignorance would consider if ignorant of their 215

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gender, Okin says that they “would be unlikely to tolerate basic social institutions that asymmetrically either forced or gave strong incentives to members of one sex to serve as sex objects for the other” (JGF: 105). Nussbaum praises MacKinnon’s and Dworkin’s “new and remarkable … insight that even sexual desire … has a social shaping, and that this shaping is often far from benign … they have identified a phenomenon of immense human importance, one that lies at the heart of a great deal of human misery” (1999f: 42–3). She deems MacKinnon’s views about sexual harassment to be “very, very important. Her emphasis on differences of power in the workplace is extremely important, as is her idea that what we have to look at is not just sameness or difference of treatment but the underlying structures of power” (2007a: 7).14 Hampton (DWDR: 132; 2007d: 128) seems to accept MacKinnon’s argument that pornography debases all women, but is unsure about the best method to address this. All the issues Schwartzman nominates as indispensable to feminist analysis but inaccessible via liberal methodology – rape, domestic violence, sexual harassment, pornography, limited reproductive choice (2006: 169) – are issues for the feminist liberals surveyed in the current work. While Okin, Hampton and Nussbaum might inherit awareness of such problems from radical feminist analyses, they present them as pressing problems for liberalism. That they inherit awareness of these problems, rather than generate it through their theory, could be a point of criticism for Schwartzman but this strikes me less as a weakness and more as an example of productive exchange between liberalism and other strands of social criticism (cf. Gordon 1994: 155). There is also the question of how Schwartzman’s preferred approach lights upon the problems that women as a group suffer. Her repeated example of a social force subordinating women is pornography, yet she seems to have adopted this concern from the work of MacKinnon and others rather than from any concrete engagement with women’s lives. Indeed, it might be that concrete engagement with women’s lives would reveal many other concerns taking priority over pornography.15 This brings to the fore another unanswered question about Schwartzman’s preferred methodology: how are its practitioners to get access to women’s lives and experiences? Who speaks on behalf of women as a subordinated group? Had Schwartzman engaged in a more detailed way with Okin’s work or the intersectionality literature, she might have had to confront this question of who speaks on behalf of any group and how the group’s concerns are to be identified. Generalizing about women on the basis of their subordination is a feature of so-called radical feminism that the feminist liberals surveyed here are eager to endorse.16 Despite the differences among women, the category of women retains a political salience for them, based on the fact that women suffer a number of similar injustices. However, none wishes for a moment 216

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to deny the sort of systematic disadvantage based on poverty and race that members of minority groups might also face. This makes it even more inappropriate to level the claim that liberalism blinds them to structures of oppression. Consider here Nussbaum’s claim that feminist liberalism, being founded on a commitment to human dignity in “a completely general way” must be concerned about the intersections of gender-based and other forms of oppression, such as those deriving from hierarchies of race or class or religious intolerance (1999f: 33). Moral individualism hands these feminist thinkers a lever with which to criticize such disadvantage, for a society that permits individuals to be disadvantaged in these ways fails to respect the dignity and equal personhood of all its members.

5. THE ETHIC AND PRACTICE OF CARE

It is hard to exaggerate the extent to which the debate about the ethic and practice of care has influenced the feminist liberals focused on in this book. All give the issues raised in this debate serious attention, discussing things such as the link between reason and emotion, the link between women and emotion, the preponderance of women engaged in caring practices and the extent to which caring can be exploitative. These feminist liberals attribute great importance to caring work and lament the fact that it is undervalued, under-recognized, and unpaid or underpaid in most societies. They reflect on the extent to which liberalism can accommodate those concerns and their responses reveal a belief that only a liberalism receptive to the issues raised by the ethic of care debate will be able to satisfy feminist concerns. Consider Okin’s claim that the Rawlsian capacity for justice involves striving for impartiality by practising empathy and her conclusion that at the heart of his thinking about the capacity for justice “is a voice of responsibility, care, and concern for others” (1989b: 230). She even claims that “Rawls’s liberal theory of justice is built to a large extent on an ethic of care” (2004: 1545). Rather than having to choose between an ethic of care and one of justice, the best thinking about justice combines both. And just as Nussbaum has denied that liberalism must be committed to an atomistic view of the individual, so she rejects any charge that this individual must be egoistic (2003c: 492). On the contrary, “all the major liberal thinkers have in their different ways emphasized the intrinsic worth of love and care” (WHD: 246). Nussbaum’s own engagement with the ethic and practice of care is manifest in many ways: her reflections on the family; her attempt to improve the quality of caring relations by acknowledging each person as an end in himself or herself; and her ambition to articulate a form of liberalism that takes the fact of dependency seriously. Much of Hampton’s work can be read as responding 217

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to the criticisms of liberalism that have emerged from the ethic and practice of care debate. She contends that both the justice and the care perspectives on human relationships harbour a form of moral incompletion and so, like the other feminist liberals, finds herself unable to align herself exclusively with one side or the other. She alerts feminists to a danger she detects in the ethic of care, which is its possible valorization of self-sacrifice and even servility. Her use of the contract device can be fruitfully interpreted as a way of making this ethic more consistently and robustly caring. Hampton’s reflections on the role of abstraction and impersonality are also relevant here, for she maintains that feminist theory needs some level of abstraction but also strives to personalize and particularize her Kantian approach to morality while retaining its universality. An article completed just before Okin’s death includes a defence of feminist liberalism that encapsulates many of the themes percolating throughout this chapter and this book as a whole. Recognizing the feminist critiques of liberalism, she explains that she and other feminist liberals (among whom she numbers Nussbaum) uphold the liberal tradition: in part because we think that liberalism properly understood, with its radical refusal to accept hierarchy and its focus on the freedom and equality of individuals, is crucial to feminism. While we agree that many liberal theorists, past and present, have failed to fulfill their commitment to the individual, in part by relegating women to “natural” subordination within families, in part by simply assuming – but then paying no attention to – all the work women do to produce and reproduce the supposedly “independent” male self, we argue that consistent and fully developed liberalism, quite radically revised so as to include women, has great potential for feminism. (2004: 1546) An eloquent statement of the feminist liberals’ overall belief in the need to re-work rather than reject liberalism comes from Nussbaum, who contends that criticisms of liberalism: challenge us to produce a new form of liberalism, which rejects feudalism and hierarchy in an even more thoroughgoing way than classical liberalism did, rejecting the hierarchy between men and women in the family and the hierarchy, in all of society, between “normal” and atypically disabled citizens. (FJ: 221) As both passages testify, contemporary proponents of feminist liberalism are not lumbered with naive or unreconstructed views of liberalism. Not 218

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only are they highly cognizant of the many and varied feminist criticisms to have emanated from the English-language literature over the past few decades, but in many cases they share these. In some ways, they even deepen them: consider their Millian interest in the family as a school of moral and political education.

6. PATEMAN HOLDS OUT

Of the major feminist critics of liberalism canvassed in Chapter 1, Pateman evinces least willingness to affirm anything about liberalism. Given the current work’s focus on contemporary liberalism, it is helpful to consider what Pateman objects to, from a feminist perspective, about contemporary liberal thought in general, and its Rawlsian incarnation in particular. Because she does not think that the contract tradition can help us to think about freedom and democracy in more creative and productive ways, she wants to move beyond the application of contract thinking of any stripe to politics (Pateman & Mills 2007c: 20). She does not take liberalism to be a very useful category either, observing that “The terms ‘liberalism’ and ‘liberal’ are now so overused, and cover such a wide array of theories from Hobbes to Rawls and beyond, that more often than not they are a hindrance rather than a help to theoretical clarity” (Pateman 2007: 204–5). Although Pateman sees Rawls as the most recent and most influential legatee of the social contract tradition, along with continuity, she emphasizes change within that tradition. Three features in particular separate Rawls from his classical predecessors. First, the early contract theorists were introducing radically new ideas of human equality and freedom and thereby potentially casting all power relations into question (ibid.: 207). By the time we get to Rawls, these ideas are less novel, as ideas at least. Pateman would agree with the feminist liberals that there is still a long distance to go before the liberal values of equality, freedom, individuality and justice become a series of hackneyed facts about Western societies. Second, the idea of a social contract was vital to its original theorists in providing a way of modelling their new vision of humans as naturally free and equal and power relations as artificial. Pateman accepts the interpretation of Rawls advanced by Hampton, according to which the contract device is ultimately redundant. The normative burden in his thinking about justice is borne by the Kantian ideal of humans as ends in themselves: as worthy of equal dignity and respect (Pateman & Mills 2007c: 15–16, 22; Pateman 2007: 208). Third, Pateman takes issue with the social contract tradition’s insistence on self-ownership: on each individual having alienable property in his or her body or labour (Pateman & Mills 2007c: 17– 18). In contemporary political theory, however, self-ownership is associated 219

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with libertarian thinking of both left and right variants rather than Rawlsian liberalism.17 Indeed, Rawls’s insistence that any benefits accruing to individuals because of the assets, talents and abilities they happen to have been born with do not necessarily belong to them (TJ: 74) is directly at odds with the idea of self-ownership. These three differences – the novelty versus the familiarity of the premises of social contract thought; the necessity versus the redundancy of the contract image; and the role of self-ownership – would seem to inoculate Rawls against the criticisms Pateman makes of the social contract genre of political thought.18 Pateman engages Rawls’s work directly on a number of occasions. She points to the way that rational, disembodied contractors behind the veil of ignorance magically become heads of households (1988: 41–3; 1989: 46; Pateman & Mills 2007c: 20). This is, as we have seen, a criticism first made by Jane English and echoed by Okin. By modifying his treatment of the just savings principle, Rawls was eventually able to drop the depiction of those in the OP as heads of households (PL: 273). Elsewhere Pateman claims that Rawls “has nothing to say about the sexual division of labour or the conviction that domestic life is the proper sphere for women”. From his silence she infers that he sees these things as natural (1989: 28). However valid as a reading of TJ, these charges cannot be sustained against Rawls’s writings as a whole, as Chapter 4 indicates. Thus two of the concerns Pateman expresses about Rawlsian liberalism are eventually removed by him. While reading radical feminists alerted Pateman to a range of questions about gender, sexuality and marriage, she does not, pace Schwartzman (2006: 98, 109), number herself among the radical feminists (Pateman 2007: 218– 19). Ultimately, it is hard to know how to classify Pateman other than as a theorist of democracy who advocates more democratization. Indeed, she explains that further and fuller democratization has been her abiding concern (Pateman & Mills 2007b: 4, 7; 2007c: 14–15; Pateman 2007: 200; 2008). Examining the classical texts of political theory is invaluable both for understanding where we have come from and for seeing what is required to move “forward to a more democratic future” (2007: 202). Pateman believes that a more robust democracy will enhance women’s autonomy (ibid.: 229). The substantive question of how a society with increased democratization would intersect with, and how depart from, the values and practices of liberalism remains unanswered. The final chapter of a book published two decades ago offers some guidance here as Pateman points to some of the lessons democrats can take from feminism. These include: the importance of the domestic realm; the question of what consent means for women, particularly with regard to sex; the link between the domestic division of labour and participation in the paid workforce; sexual harassment in the workplace; and the way the feminist movement has embodied democratic modes of organization 220

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(1989: 218–22). All but the last of these are also lessons that liberals should take from feminism according to the feminist liberals featured in this book. One of Pateman’s more recent remarks about future possibilities suggests some intersection with an area of great concern to feminist liberals. Pateman repeatedly points out that her depiction of the sexual contract was about marriage as an institution, as a contract between two individuals, rather than about the family more generally. She did this partly to highlight that the conception of marriage that has been a tacit part of the social contract tradition is not the only one imaginable: “unless the term ‘marriage’ refers only to patriarchal forms, the possibility exists for intimate association to become a free relationship between two equals, based on mutual desire, mutual respect, and the well-being of both partners” (2007: 227). These remarks echo much of what feminist liberals starting with Wollstonecraft and continuing to the present have had to say about how marriage could be reconfigured to bring it more into line with liberal values (although contemporary feminist liberals include same-sex marriage in a way that Wollstonecraft did not).

7. IDEAL THEORY

Pateman complains that political philosophy has been reduced to moral philosophy at the hands of Rawls and Kant (Pateman & Mills 2007c: 20) and recommends that it become more concerned with concrete proposals for social change than hypothetical original positions (ibid.: 22). These seem to survive as her major substantive criticisms of Rawls and they dovetail with some of the other criticisms levelled at his liberalism for being a form of ideal theory. Consider Schwartzman’s complaint that Rawls “fails to describe in much detail the cultural and social forces that create and sustain social hierarchies” (2006: 72). Yet even as ideal theory, Rawlsian liberalism cannot be complacently indifferent to the evidence of such forces when presented with it by non-ideal theories. Because the individual is the moral centre of liberalism, anything that threatens equal respect for persons must be of concern. Contemporary liberalism must be receptive and responsive to analyses that show individuals being oppressed on the basis of group membership, especially involuntary group membership, such as race, gender and, in some ways, class. Unearned power and privilege, or oppression and subordination, which are the other side of this coin, have long been among liberalism’s bêtes noires.19 However, even if liberal political thought must care about the structural forces that impede the realization of its central norms such as equality and freedom, to insist that it is also liberalism’s task to lay these bear seems to presume either a monistic view about what any and all political theories must do or a failure to appreciate how ideal and non-ideal theories can interact. 221

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Yet it seems that this is Schwartzman’s position; for her it is insufficient that liberalism can, and I would say must, respond to such structural forces when presented with them. Its inability to uncover them in the first place disqualifies it as a valuable theoretical approach for feminism (2006: 96, 161, 169). Schwartzman’s monistic view of the role of political theory appears in her enumeration of its tasks: Political theorizing must (1) focus more attention on social groups, (2) analyze actual sociopolitical structures, and (3) examine and critique male dominance as a form of oppression that intersects with other forms – such as racism and classism – but that is not reducible to them. (Ibid.: 166) Yet this seems unduly prescriptive: political theorists legitimately do a range of things (cf. Tully 2004: 80). There is no obvious reason why any and every theory should do all of these. What matters is the ability of theorists interested in social criticism to engage one another and to collectively advance these goals. This raises the issue of whether liberalism as ideal theory can respond to non-ideal theories that lay bear different and sometimes mutually reinforcing axes of social domination and oppression. An affirmative answer arises from the work of the feminist liberals under examination in this book. Hampton criticizes rape and pornography from a liberal perspective while the analyses of Nussbaum and Okin, in particular, move between ideal and non-ideal theory much more than Rawls’s own writings do.20 Consider Okin’s engagement with empirical material in JGF and her later writings, and her injunction that “a theory of justice must concern itself not with abstractions or ideals of institutions but with their realities” (JGF: 29). She chides feminist scholars who are unwilling to bring out the policy implications of their arguments (JGF: 117). Nussbaum writes of the importance of partnering with those doing empirical fieldwork (SSJ: 6) and her work often invokes statistical material to show that women around the globe are disadvantaged relative to men. Feminist liberalism is far less culpable of the charges of abstraction and oblivion to oppression that Schwartzman lays against liberalism unmodified. Rather than set them in contention, I would argue that these two general approaches – ideal and non-ideal theory – gain their truest meaning from their interaction. Ideal theory needs information about relations of domination in any given society just as critics of such relations need ideal theory. Without some engagement with actual social problems such as sexism, racism and unjustified socioeconomic inequality, ideal theory drifts off into utopianism. Given Rawls’s depiction in The Law of Peoples of his own theory as outlining a realistic utopia, this is not a direction he would endorse. He 222

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applies this more practical characterization retrospectively to PL and TJ too, describing them as trying “to say how a liberal society might be possible” (IPPR: 6).21 But, conversely, without some engagement with ideal theory it is hard to reveal sexism, racism and other sources of domination, let alone find terms with which to criticize them. Ideal theory supplies a language with which to identify and condemn oppressive social structures. As Nussbaum maintains, “Without norms such as human dignity and equality, it is not possible to say what ought to be resisted and on what basis” (2001b: 148). To illustrate this with reference to the Rawlsian repertoire (without suggesting that this is the only form of ideal theory imaginable), unless we have an image of all humans as ends in themselves, as one another’s equals, as entitled to equal freedoms, as able to willingly affirm the justice of their own society, how do we know what social relations and practices to criticize? The abstract and universalist categories of Rawlsian liberalism allow us to recognize the social practices and relations that warrant criticism precisely because they fall short of the standards adduced by ideal theory. What is essential to powerful social criticism is, therefore, the ongoing interaction between ideal and non-ideal theory: either without the other is weakened and incomplete. But pace Schwartzman, it in no way follows that a single theory must perform both tasks.22 Charles W. Mills’s recent work on non-ideal theories of the social contract is helpful for thinking about the relation between ideal and non-ideal theory. Mills engages both Pateman’s and Schwartzman’s writings, and shares many of their criticisms of contemporary liberal political theory and its inadequate attention to racial and gender injustices (Pateman & Mills 2007b: 4–5, 7; Mills 2009). Viewed from the perspectives of race, gender and class, and their intersections, Anglo-American societies fall profoundly short of the ideals of contract theory. However, faced with the choice of abandoning the contract tradition or continuing to exploit its resources to criticize unjust social practices, Mills opts for the latter. Two key features make the social contract tradition invaluable for progressive political thought. The first is its belief that politics is a human creation rather than being divinely ordained or organically present in human life. The second is “the moral equality of the contracting parties and its normative implications for sociopolitical structures” (Mills 2007a: 85). The abstract universalism of the contract tradition obscures the fact that neither premise has yet been actualized, for political structures have been the creation of only a minority of society’s members rather than all of them equally, while the sociopolitical implications of moral egalitarianism are still very far from their full realization (ibid.: 87–8). I take Mills to be suggesting that the tradition’s abstract universalism can be deployed to expose and castigate the chasm between theory and reality here. Indeed, as he points out, this gap exists for most people in those societies (ibid.: 97–100, 105). 223

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So when the promise of contract theory holds true for only a minority of a society’s members, one can either jettison the theory as irredeemably faulty or use the theory to fault, and continue to redeem, the reality. One powerful argument for continuing to use contract theory to fault and redeem the reality is path dependence: “it’s already there, and hegemonic … it’s not as if political philosophers today are starting from scratch” (Pateman & Mills 2007c: 23). As Mills later adds, “given the continuing hegemony of Rawlsian approaches, a conceptual intervention here is likely to have more impact than elsewhere” (2007b: 167). But it is not just that using the framework prevalent in political theory offers the most efficient and effective way to have issues of domination attended to by those working in the mainstream. Mills also suggests that liberal values have much to recommend them: the problem lies in their incomplete extension to all members of society. As he asks: What’s wrong with moral equality, autonomy, self-realization, equality before the law, due process, freedom of expression, freedom of association, voting rights, and so forth? … The real problem historically has been the restricted extension of these values to a limited population, or the emptying of nominal freedoms of any real substantive content by oppressive social structures. (2007a: 102) Mills seeks to dissociate these liberal values from liberalism’s supposed atomist ontology, believing that people need to be thought of as members of groups (ibid.: 101, 104). However, as we have seen throughout this chapter, individualism is an ethical rather than an ontological commitment of contemporary liberalism. In the move to political liberalism, Rawls coined the phrase “justice political, not metaphysical” and sought to minimize the ontological commitments of his theory, while his feminist interlocutors also reject ontological individualism. Some contemporary liberals thus share Mills’s concern to avoid ontological individualism while endorsing his vision of members of subordinated groups being able to “realize their ‘individuality’” (ibid.: 103). Mills concludes that “contract theory has a radical potential barely tapped” (ibid.: 104; cf. 105) and not only agrees with, but draws inspiration from, some of the feminist liberals studied in this work regarding the critical possibilities within the liberal tradition.23

8. CONCLUSION

My aim in this chapter is not to immunize liberalism against all future feminist (or other) critique. That would be impossible, for liberalism is an internally 224

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heterogeneous tradition and some of its elements will continue to warrant criticism from feminists and others. Feminism is also an internally heterogeneous school of social criticism and feminist critics themselves will interpret aspects of liberalism differently from one another. Nor are feminist or liberal theory static; as practical theories of politics, they continue to grow, change and be reinterpreted. Any ambition to inoculate liberalism from feminist critique would also founder on the fact that the feminist liberals surveyed in this book do not always agree with one another, and so while it is possible to elicit some of their shared beliefs, proponents of feminist liberalism do not speak in unison. This polyphony increases when other feminist liberal positions are taken into account, such as those of Drucilla Cornell, McClain, Chambers, Elizabeth Brake and Tamara Metz.24 What this chapter does aim to demonstrate is that contemporary feminist liberalism is not encumbered by a simplistic view of liberalism. Feminist liberals are highly cognizant of the feminist criticisms that have emanated from the English-language literature over the past few decades. In many cases they share, and sometimes even intensify, these concerns. However, in their distinctive ways, Okin, Hampton and Nussbaum look within liberalism for normative and theoretical resources to address these challenges, on the grounds that a liberalism that cannot incorporate the diverse needs, interests and experiences of women cannot be or become truly liberal. Of course, the attempts by these feminist liberals to seek liberal answers to the problems of liberalism will not persuade everyone. However, much will have been achieved if this book’s survey of contemporary feminist liberalism encourages readers to eschew the sort of caricatured image of feminist liberalism so prevalent in the literature.25

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Any universalism that has a chance to be persuasive … must, it seems to me, be a form of political liberalism. (SSJ: 9) In stipulating how his approach deals with justice issues for women and for families, Rawls presents himself as remaining within the confines of a purely political liberalism: [T]he freedom and equality of women, the equality of children as future citizens, the freedom of religion and … the value of the family in securing the orderly production and reproduction of society and of its culture from one generation to the next … provide public reasons for all citizens. (IPPR: 163–4; cf. 156–7; JFR: 168) If Rawls can generate justice for women within a purely political form of liberalism,1 this would, prima facie, suggest that Okin, Hampton and Nussbaum could too. This chapter and the next examine their work in terms of the Rawlsian distinction between political and comprehensive liberalisms. Trying to locate each of these feminist liberals in terms of the political–comprehensive distinction is valuable because it further illuminates the relation of each to Rawlsian liberalism and returns attention to the important question of the role of the state in contemporary feminist liberalism. Nussbaum’s repeated insistence that her position represents a form of political liberalism (WHD: 5, 8, 180; 1999b: 110; 1999d: 169, 171; 2000c: 124; 2001b: 140; 2002a: 91)2 distinguishes her feminist liberalism from that of Okin and Hampton. This chapter examines her claim from a number of angles, raising multiple doubts about its plausibility. Section 1 compares Nussbaum’s liberalism with Rawls’s depiction of political liberalism and detects several gaps in their fit. Section 2 examines Nussbaum’s reasons for 226

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rejecting the label of comprehensive liberalism and shows many of these to be shaky. Section 3 considers some of the changes to Nussbaum’s position with the arrival of FJ and argues that the thicker conception of the person adduced there is incompatible with the method and substance of Rawls’s political liberalism. Given the doubts about whether Nussbaum can stretch a purely political form of liberalism to have global application, this chapter concludes with a brief discussion of whether Charles Taylor’s ruminations about achieving an international consensus on human rights provide a model for Nussbaum in this regard. Taylor envisages an overlapping consensus among nations without recourse to political liberalism. Casting doubt on whether Nussbaum really does articulate a form of political liberalism does not amount to demonstrating that hers is a species of comprehensive liberalism. It is possible that this framework is inapplicable to her feminist liberalism, given its global reach. Rawls developed the political–comprehensive distinction for domestic, liberal societies and it plays a limited role as he extends his liberalism to the international arena in The Law of Peoples. Much depends, therefore, on how Nussbaum envisages any worldwide overlapping consensus on the HCA emerging. One route would be what I call “cumulative universalism”, with the HCA being debated and perhaps adopted by each nation seriatim. Her claim that “the primary role for the capabilities account remains that of providing political principles that can underlie national constitutions” (WHD: 105) suggests such an approach, and this would be easier to reconcile with political liberalism. However, she also proposes that international agencies and agreements could affirm the HCA, envisaging “a transnational overlapping consensus on the capabilities list, as a set of goals for cooperative international action” (WHD: 104). At other times Nussbaum talks about the HCA being adopted at both the national and the international levels. International agencies can, along with particular states, promote the HCA in countries where it has not been adopted (WHD: 102–5). These last two approaches go beyond cumulative universalism to require the existence of a genuinely transnational political culture, distinct from domestic political cultures.

1. THE CRITERIA OF A PURELY POLITICAL LIBERALISM

The distinction between comprehensive and political doctrines in general, and between comprehensive and political liberalisms in particular, plays a central role in Rawlsian thought after TJ. Nussbaum’s attraction to a political rather than a more comprehensive liberalism relates to Rawls’s rationale for introducing the separation in the first place, which was his desire to acknowledge and accommodate the fact of reasonable pluralism. Nussbaum wants hers to 227

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be a capacious, rather than a confining, universalism that creates maximum space for a plurality of ways of life worldwide. This is, in turn, connected to her belief that each person should be free to pursue his or her own conception of the good, subject to the harm principle (WHD: 59, 74, 103; 2000c: 128–9). However, along with its ambition to host maximum diversity, Rawls’s idea of political liberalism has three specific, formal features (PL: 11; JFR: 33): 1. Its principles of justice apply to a society’s basic structure only (PL: 11, 13; JFR: 14, 19). 2. It is freestanding, independent of any particular comprehensive doctrine. Rawls hopes that the principles of political liberalism will be compatible with, and affirmable by, a wide range of comprehensive doctrines, in part because they are not seen to rely on any particular comprehensive doctrine (PL: 12–13, 374). 3. It gives expression to fundamental ideas implicit in society’s public political culture (PL: 13). Indeed, one of the things that detaches political liberalism from any particular metaphysical view is that it gives expression to ideas that are already present (but perhaps only tacitly) in a society’s public political culture (cf. Freeman 2003b: 31).3 Its second and third features can, therefore, be hard to disentangle from one another. In order to evaluate Nussbaum’s claim that the HCA is a form of political liberalism, it is necessary to assess its relation to each of these three features.

The basic structure

Rawls’s concept of the basic structure demarcates a set of institutions that are pivotal in affecting profoundly all citizens’ lives. Except when describing Rawls’s work, Nussbaum says little about the basic structure,4 and her theoretical framework is quite different from his, with its primary focus on capabilities, not institutions. Nussbaum’s commitment to multiple realizability means that quite different institutions can foster the capabilities. Indeed, apart from the state, specific institutions are secondary to her interests. Perhaps this explains why, on the rare occasions when she does make reference to the basic structure, it sits uncomfortably with the rest of her thinking. Thus Nussbaum declares that because the family “has a profound influence on human development, an influence that is present from the start of a human life”, it “has a very strong claim to be regarded as part of the basic structure” (WHD: 270; cf. SSJ: 20–21; FJ: 212). Shortly after she explains that because the family is part of the basic structure, “capability-based principles of justice should apply to it directly” (WHD: 276). Yet as Chapter 11 indicated, 228

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Nussbaum does not seem to hold the family to be a necessary institution: the capabilities it promotes could, in principle, be nurtured by other institutions. When contrasting her approach to Rawls’s, she “does not assume that any one affiliative grouping is prior or central in promoting those capabilities” (WHD: 276). Priority is accorded to needs, with the institutions that satisfy them being secondary (WHD: 279). In an earlier discussion of this topic, Nussbaum recommended that we “be more agnostic than liberal theory currently is about what fundamental affective ties the ‘basic structure of society’ should include, and in what form” (1999d: 190).5 Bearing out my claim that her primary focus is capabilities, not institutions, these remarks make it hard to see exactly what her appeal to the basic structure means if she cannot, in principle, prioritize any particular institutions in the way Rawls does. As Freeman observes, Nussbaum “does not provide principles of justice for the basic structure of society, which for Rawls is ‘the primary subject of justice’” (2006: 409).6 Nussbaum’s invocations of the basic structure generate more confusion than clarity in understanding her liberalism,7 making it difficult to see how the HCA satisfies the first criterion of political liberalism.

A freestanding doctrine

When Nussbaum explains how her view qualifies as a form of political liberalism, what she emphasizes most is the second characteristic enumerated above. The capabilities are “free of any specific metaphysical grounding … [they] can be the object of an overlapping consensus among people who otherwise have very different comprehensive conceptions of the good” (WHD: 5; cf. 14, 76, 83, 101–2, 105, 208; 2002a: 91; FJ: 297). She deems it “very important that the core political principles of a society be articulated and defended without reliance on divisive metaphysical, epistemological and ethical ideas” (2003b: 27). A major factor complicating Nussbaum’s claim that the HCA is freestanding is its incorporation of liberal political values (Chapter 11, §4)8 because liberalism is a culturally specific tradition for organizing social and political life. Although Nussbaum talks about the “traditional political and civil liberties” (WHD: 105) appearing in the HCA without noting that they belong to a particular tradition, she elsewhere acknowledges the presence of specifically liberal political values (WHD: 96) and associates a number of these with modern liberal democracies (WHD: 168). She specifies that the capabilities are “the source of political principles for a liberal pluralistic society” (FJ: 70), yet continues to describe them as providing “a good basis for political principles all around the world” (FJ: 80) which simply compounds confusion about how universal she takes these to be. Flax strongly disputes this characterization of the HCA as freestanding, seeing it as built instead on 229

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a metaphysical view of the human and a comprehensive conception of the good. The HCA makes sense only “within a liberal world view … The value of these capacities is derivative and not probative of the goodness of her preferred way of life” (2001: 50).9 Simply pointing to the hefty dose of liberalism in the HCA does not in itself mean that it could not and would not be affirmed by people with a diversity of comprehensive conceptions of the good. These are potentially universalizable values and it might be that once people have a conception of these capabilities, they do or would come to value them (Chapter 10, §5). Thus when Nussbaum claims that the HCA “can be the object of an overlapping consensus among people who otherwise have very different comprehensive conceptions of the good” (WHD: 5), this should be read as signalling a possibility. The extent to which the HCA will command the support of people adhering to a wide variety of comprehensive conceptions of the good remains to be seen.

The public political culture

Because political liberalism draws from ideas in the public political culture of a liberal democracy, it articulates a set of widely shared, but in some cases latent, understandings. Many, and perhaps most, citizens already harbour these ideas and values at some level. Rawls is calling for an overlapping consensus on things that people already, for the most part, agree on. Nussbaum, by contrast, is trying to achieve a consensus on values that many people do not currently share.10 Gender inequality has, for example, no place in the HCA, yet, as Rachana Kamtekar (2002: 266) and Chambers (2008: 181 n.41) observe, such inequality has characterized most, if not all, cultures worldwide. Kamtekar (2002: 265) also discusses capability 8, Other Species, in this context. Nussbaum freely admits that this has been the most controversial item on the list (WHD: 157), with South Asian participants evincing no sense of its value. It is not, therefore, “part of a completely international political consensus at the present time” (WHD: 157–8). It remains on the list because of Nussbaum’s strong personal belief that it belongs there, a commitment she shares with Scandinavian discussants of the HCA. Nussbaum consoles those who do not hold this capability in high esteem, saying that because it is a capability rather than a function, they will not be forced to show concern for animals and the environment should they elect not to (WHD: 158). Yet this is an unsatisfactory response in two ways. First, taking refuge in the capability– function distinction would seem to open the door to adding any capability to the list, for in no case are people required to function in accordance with it. But second, the purpose of the list is to lay out a suite of capabilities that 230

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governments around the globe should provide for their citizens. By keeping a capability on the list, Nussbaum is requiring governments to bring everyone up to a threshold level even if most members of a country do not value that capability. Mere recourse to the optional nature of translating the capability into a function does not remove this political imperative. The HCA is not derived from values and beliefs that most citizens worldwide currently share; rather, it articulates a set of values that Nussbaum hopes can and will achieve global support. But this would require considerable change in many people’s attitudes to issues such as gender equality. Yet at one point she specifies that whether there is currently a consensus on the HCA is irrelevant. In order to challenge its viability, “what would need to be shown is that the concepts I advance could not be reflectively endorsed by citizens who have gone through the lengthy process of normative reflection” (2001b: 137). Thus, despite some of her representations, the HCA is not derived from ideas and beliefs that most people already affirm. Nussbaum sometimes, and increasingly, portrays the HCA’s components as deriving from intuitions about political goods, rather than ideas and ideals that are already part of the public culture. As she proclaims, “the primary weight of justification remains with the intuitive conception of truly human functioning and what that entails” (WHD: 76; cf. 5, 77, 148).11 This is complicated, however, by her claim that these intuitive ideas of human functioning have “roots in many different traditions” (WHD: 101; cf. 151) for this connects the intuitive ideas with those that might be present in a number of different cultures. While Nussbaum’s claims that ideas of respect, equality and the inviolability of the person appear in non-Western cultures might be true, they confront a version of the translation problem (Chapter 10, §2). How is it that a non-Western culture’s support for mutual respect and human equality becomes an endorsement of the specific provisions of the HCA? Nussbaum needs to answer this question to make her claim that many cultures contain values supportive of the HCA more compelling. Moreover, even demonstrating that these ideals are present in the wider culture is not, for Rawls at least, synonymous with their being part of the specifically political culture (PL: 14). It is possible for ideas to be part of the background or social culture without contributing to the public political culture, yet it seems to be the former that Nussbaum is gesturing towards with her loose references to traditions. A further challenge for Nussbaum in assimilating her position to the Rawlsian model of political liberalism arises from the HCA’s universal scope. She would, seemingly, have to call on widely shared ideas that form part of a global political culture. Alternatively, if she is working with the model of cumulative universalism mooted above, then at any time, the only public 231

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culture the HCA has to mesh with is the public culture of each state. The HCA could achieve a sort of cumulative universalism with each nation affirming it independently, drawing from the resources of its own particular public culture in doing so. But this still makes it incumbent on Nussbaum to show that the HCA’s values are present in the public political culture of each of the world’s nations, and so returns us to the problems just raised. If she wants a more genuinely international consensus than cumulative universalism, she needs to show that an international political culture is developing that supports the HCA. However, it seems that Nussbaum does not want to retain this third dimension of political liberalism. Referring to Rawls’s ability to ground his claims for political liberalism in actually existing political cultures, Linda Barclay contrasts Nussbaum’s open acknowledgement “that there is no consensus on her list of human capabilities and it is most certainly not developed from ideas implicit in the public political cultures of those democracies” (2003: 12). Nussbaum therefore fails to satisfy the third criterion of political liberalism (ibid.: 13). In response to Barclay, Nussbaum distinguishes two possibilities for interpreting Rawls on this issue. The first accepts that this is a constitutive part of the definition of political liberalism, so that for the HCA to qualify as political liberalism it would need to draw from an equivalent international political culture. Nussbaum concedes that this is problematic for her, although once again she tenders the view that “the ideas of the capabilities approach do have deep roots of many kinds in different cultures” (2003b: 31), for there is nothing uniquely Western about the “ideas of mutual respect, human equality and the inviolability of the person” (ibid.: 32). The second interpretive possibility Nussbaum advances for understanding what Rawls means by this third feature is to deny that it is an essential criterion of political liberalism. She moves from saying that the text does not rule out this possibility (ibid.: 31) to embracing it as the correct reading (ibid.: 32, 39). She does not justify this conclusion, although an observation she makes in the context of exploring the first interpretive possibility might be relevant. Noting that Rawls is vague about what role the ideas implicit in the political culture play in political liberalism, Nussbaum correctly points out that the political culture might contain myriad ideas, only some of which are compatible with political liberalism’s principles (ibid.: 31). Of course the fact that the idea is vague and underspecified is not sufficient grounds for asserting that this third feature is not constitutive of Rawlsian political liberalism, but without these question marks Nussbaum’s preference for the second interpretative possibility seems arbitrary and self-serving. In sum, there are a number of doubts about the extent to which the HCA satisfies the three criteria Rawls stipulates for political liberalism. The role of the basic structure in the HCA’s theoretical architecture is unclear, its 232

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powerful liberal components make it hard to accept that it stands free of other doctrines and its relation to a public political culture is uncertain. In light of these doubts, it is hard to share Nussbaum’s confidence that her feminist liberalism is a form of political liberalism, at least according to the model laid out by Rawls.12 The next section approaches this issue from a different angle, exploring Nussbaum’s reluctance to accept the label of comprehensive liberalism.

2. NUSSBAUM’S CRITIQUE OF COMPREHENSIVE LIBERALISM

On the basis of her careful comparison between Rawls’s and Nussbaum’s conceptions of political liberalism, Barclay contends that the HCA is better understood as “ordinary comprehensive liberalism” (2003: 5; cf. 9, 15, 17–18). She concedes, however, that Nussbaum’s position is different from some other versions of this doctrine, and concludes that it is best to recognize a plurality of forms of comprehensive liberalism. Nussbaum could thus reject some of the features of other forms of comprehensive liberalism without having to refuse the label in toto (ibid.: 19, 21).13 Nussbaum fears that adopting any form of comprehensive liberalism amounts to asking all individuals to “drop their own doctrine in favor of our own” (2003b: 27). But this makes no room for reasonable forms of comprehensive liberalism that do not compel everyone to live by their lights. Even Mill, taken to be a paradigmatic comprehensive liberal by Rawls and Nussbaum, celebrated diversity and authenticity along with autonomy and individuality, making it inappropriate for his style of comprehensive liberalism to require everyone to think alike about the good life. Chapter III of On Liberty declares that: There is no reason that all human existence should be constructed on some one or some small number of patterns. If a person possesses any tolerable amount of common sense and experience, his own mode of laying out his existence is the best, not because it is the best in itself, but because it is his own mode … different persons also require different conditions for their spiritual development, and can [not] … exist healthily in the same moral … atmosphere and climate. The same things which are helps to one person towards the cultivation of higher nature are hindrances to another … unless there is a corresponding diversity in their modes of life, they neither obtain their fair share of happiness, nor grow up to the mental, moral and aesthetic stature of which their nature is capable. (Mill 1997: 93–4) 233

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Although these lines were penned to justify departures from dominant contemporaneous practices and outlooks, it would be blatantly contradictory for Mill to require all individuals to subscribe to a single conception of the good or way of relating to their values and beliefs. Nussbaum also seems to believe that comprehensive liberalism proscribes adherence to traditional ways of life but, as Barclay points out, this is incorrect. The key issue for comprehensive liberalism is that ways of life are chosen: that no individual be compelled to follow a traditional lifestyle nor be a member of a religious community (Barclay 2003: 20). With her commitment to choice and practical reason, Nussbaum clearly agrees with this. As she insists, “a nonautonomous life should not be thrust upon someone by the luck of birth” (1999b: 110). Women can lead traditional lives so long as they do so “with certain economic and political opportunities firmly in place” (WHD: 41; cf. 59; 1999b: 110). Nussbaum also stipulates, in reply to Barclay, that all individuals must receive an education affording them the capability for critical reflection. Should they elect not to exercise this in later life, that is their prerogative (2003b: 39). Even religious schools teaching “authoritarian and anti-rationalist conceptions of the good life” should include “a core of civic education” that opens up “possibilities for practical reasoning and choice” (2001b: 145–6). But making non-autonomy acceptable only when freely chosen still amounts to an affirmation of autonomy. Indeed, Barclay (2003: 15, 18) takes Nussbaum to endorse the value of individual autonomy in a more wholehearted way,14 providing further grounds for classifying her liberalism as comprehensive, rather than political. Nussbaum rejects Barclay’s claim that her liberalism is committed to the value of individual autonomy, but her reasons are not altogether clear, given the many remarks she makes in favour of autonomy or things intimately allied to it. Thus one of her reasons for coming to rely less on Aristotle and more on Kant in formulating the HCA was that she was “not one of those people who wanted to bash the Enlightenment and dismiss its aim of giving us a life enlightened by the critical use of reason” (1999c: 241). Nussbaum prizes “the opportunity to think and choose for oneself ” (WHD: 51) and the HCA protects “each person’s liberty of choice in fundamental matters” (WHD: 53). Acknowledging “the dignity of persons as choosers” (WHD: 59–60), it refuses to be “dictatorial about the good” (WHD: 69). Capability 6, Practical Reason, includes “Being able to form a conception of the good and to engage in critical reflection about the planning of one’s life” (WHD: 79). Nussbaum proclaims that “We want to make sure that all citizens have the ability to make their own plans of life and to use their own reason in making choices” (2001b: 145). Education is “key to the human capabilities”, in part because it empowers people by imparting skills of “critical thinking” (FJ: 323). The presence of choice imbues actions with special worth (WHD: 234

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88), just as one of the things Nussbaum finds valuable about rights language is its emphasis on “choice and autonomy” (WHD: 101). The HCA’s “core idea is that of the human being as a dignified free being who shapes his or her own life in cooperation and reciprocity with others, rather than being passively shaped or pushed around by the world in the manner of a ‘flock’ or ‘herd’ animal” (WHD: 72). The Millian overtones of this last quotation are particularly striking, but all these remarks shroud in mystery Nussbaum’s insistence that her liberalism does not endorse some form of personal autonomy. Part of the answer to this puzzle might derive from a move Rawls makes when adumbrating political liberalism. Distinguishing political from moral autonomy, he advocates only the former. Political autonomy represents “the legal independence and assured political integrity of citizens and their sharing with other citizens equally in the exercise of political power” (PL: xliv). Moral autonomy, by contrast, is “expressed in a certain mode of life and reflection that critically examines our deepest ends and ideals” (PL: xlv; cf. 78). Whether moral autonomy is a personal value should be left for individuals to decide on the basis of their comprehensive doctrines. Nussbaum’s HCA, with its liberal political values, clearly endorses a conception of political autonomy. But it goes beyond this, supporting practical reason and free choice in many more areas of life than just the political. So it is hard to conclude that Nussbaum adheres to Rawls’s political–moral separation when advocating autonomy. When trying to separate political from moral or personal autonomy, Rawls notes that “Many citizens of faith reject moral autonomy as part of their way of life” (PL: xlv). This could be the inspiration for Nussbaum’s professed rejection of personal autonomy as a value and, consequently, of comprehensive liberalism. Barclay (2003: 20) notes that a comprehensive liberal who did not support basic freedoms of conscience and association for religious groups would disqualify himself or herself as a comprehensive liberal. Nussbaum concedes this (2003b: 35; cf. 1999b: 108) but continues to maintain that comprehensive liberalism will be either hostile or condescending towards religious belief. The issue is not one of policy – whether it would limit religious freedom – but justification. Comprehensive liberalism champions the value of individual autonomy that neither reflects nor respects the views of all individuals (2003b: 36). “If an ideal of autonomy were made central to a political conception, most religious believers would not accept it” (ibid.: 41). She even asserts that autonomy has an anti-theocratic history in the Western political tradition (ibid.: 25–7). Comprehensive liberalism thus shows too little respect for persons and their diverse conceptions of the good, whereas respect for plurality lies at the core of the HCA (2000c: 129). Political liberalism does not enshrine one way of relating to one’s values as superior to others; it offers a more egalitarian and inclusive outlook on individuals and their diversity (1999b: 108–10). Political liberalism provides a limited set of 235

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political values that people from many traditions can freely affirm because they are compatible with many different views of the good (FJ: 297). Replying to Barclay, Nussbaum reiterates a series of claims made in WHD about the link between secular humanism and comprehensive liberalism (WHD: 176, 180). One illustration of this is link is said to come from On Liberty: “Mill excoriates Calvinism as an ‘insidious … theory of life’ that creates ‘a pinched and hidebound type of human character’” (WHD: 176; cf. 1999b: 109; 2003b: 35).15 Once again, Nussbaum’s reading of Mill is selective. His reason for criticizing Calvinism is that it promotes obedience to God’s will to the exclusion of all other capacities, so that: To one holding this theory of life, crushing out any of the human faculties, capacities and susceptibilities, is no evil: man needs no capacity, but that of surrendering himself to the will of God and if he uses any of his faculties for any other purpose … he is better without them. (Mill 1997: 89) Mill clearly thinks that a doctrine that develops one human ability while stunting a host of others is anathema to human flourishing and to each person developing in his or her own way. Given Nussbaum’s own endorsement of ten diverse, separate and non-fungible human capabilities (WHD: 81, 211) that individuals should be able to choose to exercise or not, it is curious that she neglects this aspect of Mill’s critique of Calvinism.16 This is not, moreover, all that Mill says about religion and its relation to human development, for he goes on to claim in the very next paragraph that there could be a religious warrant for a commitment to diversity. He reflects that: if it be any part of religion to believe that man was made by a good Being, it is more consistent with that faith to believe that this Being gave all human faculties that they might be cultivated and unfolded, not rooted out and consumed, and that he takes delight in every nearer approach made by his creatures to the ideal conception embodied in them, every increase in any of their capabilities of comprehension, of action, or of enjoyment. (1997: 89)17 Here Mill not only reiterates a view that resembles Nussbaum’s own about people being permitted to develop a wide range of human capabilities (Mill even uses this term) but he envisages support for this ideal coming from a religious doctrine. This indicates that his critique of Calvinism is not a critique of religion per se, nor even of religious obedience per se. What disturbs him is the obsession with developing one capacity at the expense of all others, 236

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and of channelling this capacity for obedience in a rigid and uniform manner, “in a way prescribed to them by authority; and therefore, by the necessary condition of the case, the same for all” (ibid.: 89). It is hard to see exactly what Nussbaum would object to in this presentation of Mill’s thought, given the HCA’s endorsement of “Being able to search for the ultimate meaning of life in one’s own way” (capability 4)18 and “to engage in critical reflection about the planning of one’s own life” (capability 6). She further claims that “No religious tradition consists simply of authority and sheeplike subservience. All contain argument, diversity of beliefs and practices” (WHD: 182). SSJ suggests that when the political liberties and equalities associated with the HCA are in place, citizens’ “role toward their own religious tradition will also be active and reflective, not merely submissive to the powerful interpreters of the moment” (SSJ: 116) and implies that women in particular will be beneficiaries of such a development. Nussbaum describes “religious women and men as choosers of a way of life” (WHD: 188), which suggests that they are exercising personal autonomy in being religious. For these reasons, Nussbaum could easily endorse Mill’s criticism of Calvinism for seeking to impose a rigid and conformist model of obedience on its followers. This makes it hard to see why she illustrates the claim that comprehensive liberalism is necessarily disrespectful to the views of religious believers with evidence from Mill that is not, on closer inspection, so far from her own claims about desirable forms of religious belief, which she does not see as disrespectful. The logic of Mill’s own position on authenticity would further suggest that being a religious believer might be necessary for some individuals to fashion a life that they feel is genuinely their own.19 Nussbaum buttresses her argument about comprehensive liberalism’s failure to respect religious believers with a hypothetical scenario of the US president visiting a university founded on a religion believing that women are different in nature from, and should be ethically subordinate to, men. A president who was a comprehensive liberal would condemn this religious view as sexist, un-American and unreasonable, without seeking to curb the individuals’ freedom of speech. A politically liberal president, by contrast, would not insult the doctrine’s adherents by labelling it unreasonable, with the provisos that they: respect women’s full equality as citizens and in their non-domestic roles in the workplace; do not legitimate domestic violence, sexual abuse or marital rape; teach academic doctrines about women’s full equality (2003b: 36–8). But this seems like an unusual scenario for Nussbaum to put forward as a defence of political liberalism for feminist purposes. It is not clear how a doctrine premised on women’s ethical subordination to men is compatible with the HCA, given its foundational commitment to equal dignity for all. Nussbaum would have to show that making one adult ethically subordinate to another on the grounds of gender alone is compatible 237

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with “being able to be treated as a dignified being whose worth is equal to that of others” (capability 7B; WHD: 79). Her claim that her political liberalism is compatible with this sort of doctrine becomes even more puzzling when, in FJ, she describes the new type of liberalism she favours as “rejecting the hierarchy between men and women in the family” (FJ: 221). This would imply that a doctrine casting women as ethically subordinate to men would be incompatible with her liberalism. In addition, one of Okin’s earliest fears about Rawls’s shift to political liberalism was that it would make his theory of justice more tolerant of doctrines premised on gender inequality than it would be of racist doctrines (Okin 1994a: 31; Chapter 4, §2). It is interesting to speculate whether Nussbaum would correspondingly extend such respect to a university founded on the belief that people of one race were different in nature from, and ethically subordinate to, those of another. Surely this could be called unreasonable. If so, it is not clear why it is disrespectful for a feminist to claim that doctrines rendering women ethically subordinate to men are also unreasonable. (This is not an either/or scenario for black women who would be rendered inferiors either way.) Contrast Nussbaum’s reticence here with the position taken by Hampton, and also by MacKinnon, that a society that respects men and women as moral equals is both morally better and objectively truer than the current sexist one (Chapter 8, §2). Indeed, Nussbaum makes a comparable point herself in another context, observing that “It is characteristic of many modern debates that racial discrimination is taken to be an impermissible expression of religious tradition, while sex discrimination is taken to be just the way things have always been” (WHD: 229). But even if Nussbaum wants to insist that a doctrine propounding women’s ethical subordination to men is reasonable, her scenario poses a question about how much of the comprehensive doctrine is actually being respected when hedged in by the provisos attached in the name of political liberalism. What form does ethical subordination take when women enjoy full equality in the public realm, in the paid workplace and cannot be violated in the home? Nussbaum reprises this issue in “Rawls and Feminism”, contending that “inegalitarian views about the proper sphere of women’ lives” (2003c: 510) can be part of a reasonable comprehensive doctrine, and thus compatible with a purely political liberalism. She makes the point implied above that even though it can count as reasonable, it will be hard for such a doctrine to endure the friction between its view of women as citizens and its view of them as different from or inferior to men in other key respects. She also takes up Okin’s challenge that political liberalism is more tolerant of sexist than of racist doctrines and concludes that “a sexist doctrine that supports equal citizenship is analogous to a racist doctrine that supports equal citizenship” (ibid.). Under the auspices of political liberalism, both qualify as 238

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reasonable. She continues to call sexist doctrines reasonable even though, being purveyed in the household, they can influence boys’ and girls’ sense of gender relations from a very young age (ibid.: 510–11). This complicates her endorsement of the Millian idea of the family as the first school of social relations (Chapter 11, §1), for anyone who believed this would be less sanguine about girls and boys growing up with an inegalitarian view of the sexes. Indeed, Nussbaum admits here that a sexist doctrine in the household might not be compatible with fully equal citizenship for women (2003c: 510) but does not, curiously, retract her insistence on its reasonableness. For all these reasons, this particular attempt by Nussbaum to demonstrate the superiority of political liberalism by laying out how it would treat a doctrine promoting women’s ethical subordination to men raises more questions than it answers. But in so far as it conveys the view that political liberalism requires feminists (and others) to forebear from saying that a view of women as ethically subordinate to men is unreasonable, it hardly provides a ringing endorsement of political liberalism for feminist purposes. There are, in sum, many questions concerning Nussbaum’s claim to follow Rawls by advocating a political form of liberalism. The theoretical status and function of the idea of the basic structure in the HCA is unclear. The extent to which the HCA is independent of any particular comprehensive doctrine is dubious, given the many liberal values it embeds. It is not obvious that Rawls’s attempt to show that political liberalism is freestanding by deriving it from the fundamental ideas implicit in a society’s public political culture is available to, or sought by, Nussbaum. It is hard to grasp exactly why she claims to be rejecting the value of personal autonomy. Her argument that comprehensive liberalism fails to extend due respect to religious believers is insufficiently established. While this might be true of some forms, it need not be an inescapable feature of comprehensive liberalism: reasonable forms of comprehensive liberalism need not be as imperious as Nussbaum implies.20 Her attempts to defend the reasonableness of sexist or racist comprehensive doctrines are likely to find few supporters among feminists, to say nothing of becoming entangled in her own statements about gender equality and women’s dignity. For all these reasons, it is hard to agree with Nussbaum that her feminist liberalism qualifies as a form of political liberalism.

3. SHIFTING FRONTIERS?

Although FJ expands the population of the subjects of Nussbaum’s theory of justice, she continues to insist that hers is a political conception of liberalism offering a set of political goals that stand free of any particular metaphysical doctrine and which can command an overlapping consensus among 239

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individuals with different conceptions of the good within and across cultures (FJ: 70, 78–9, 163, 182). I detect, however, two shifts in the way Nussbaum presents her ideas in connection with her claim to be advancing a form of political liberalism: (i) a reconsideration of her reply to Barclay, for she now tries to show that she does draw from ideas in the public political culture; and (ii) a thicker conception of the person. Yet these twin developments push in contrary directions, for while the first seems designed to enhance her approach’s credentials as a form of political liberalism, the second adds to the doubts listed above about whether it qualifies as this.

Bringing the public political culture back

FJ reconsiders, albeit in an unacknowledged way, Nussbaum’s previous repudiation of the suggestion that her doctrine of political liberalism needs to draw its content from the public political culture. Identifying what is new in PL compared to TJ, she talks about the advent of a “public political conception” of justification that “must be built from, and expressed in terms of, ‘certain fundamental ideas seen as implicit in the public political culture of a democratic society’” (FJ: 300, citing PL: 13). Applying this to her own approach, she announces that “a strong commitment to the good of others is a part of the shared public conception of the person from the start” (FJ: 158). The idea of “Living with and toward others, with both benevolence and justice” has become “part of the shared public conception of the person that all affirm for political purposes” (FJ: 158). Nussbaum also refers to “the values of the public culture” (FJ: 184) in discussing whether citizens who have no intention of exercising some of the capabilities might still value them. These remarks all underscore the facet of political liberalism Nussbaum had dismissed as inessential when replying to Barclay. It seems reasonable to infer that in the intervening years, she has taken Barclay’s challenge to heart, for she grapples with the issue in a section of FJ entitled “An International ‘Overlapping Consensus’” (FJ: 298–305) and cites Barclay (FJ: 443–4 n.22).21 However, as Nussbaum embraces this formerly rejected dimension of political liberalism, the question posed above returns with greater urgency: what public political culture can provide a fund for her political liberalism’s ideas? Is it the public political culture of each nation separately, or does the universalism of her approach require a global political culture? Although she remains clear that the HCA is directed primarily at states, which retain responsibility for providing the capabilities to a threshold level for all their citizens (FJ: 291), Nussbaum comes to place more emphasis on the generation of a transnational consensus on the HCA. She finds the ideas of political liberalism to be “even better established in the international realm 240

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than they are in the domestic setting” (FJ: 304–5). She writes of “a world culture of human rights” and “the ideas inherent in that world culture” to which individuals in non-democratic societies can appeal (FJ: 304). She talks about a new approach to the family as “a priority of the global public sphere” (FJ: 322). She entertains the idea of those in the international arena promoting liberal ideas in countries where these ideas are present but not dominant. Her image is not one of imposing values from outside but supporting the deepening and extension of some values within a culture so that they can prevail over rival, non-liberal ideas. She envisages the international political culture working with and reinforcing elements of the domestic culture (FJ: 304). All these remarks move her away from any model of cumulative universalism towards the idea of a genuinely transnational consensus on the HCA (cf. Freeman 2006: 392). Nussbaum concedes that Rawls can easily be read as saying that political liberalism applies to Western, liberal states only (FJ: 298) but if this is his intention she departs from it, pointing out that many of the ideas of political liberalism have purchase in non-Western countries too. Many if not most of the existing constitutional democracies of the world … have traditions, longer or shorter, of committing themselves to similar ideas [to political liberalism] – not only the idea of toleration itself, but also ideas of equality, respect, and human dignity. (FJ: 303; cf. 299) There are two problems with this position. First, the aforementioned translation problem recurs, for Nussbaum needs to show how any country’s general commitment to toleration, equality, respect and dignity is tantamount to affirming the specifics of the HCA. Second, Nussbaum focuses on content to the neglect of method; she seems content with the fact that these ideals are (loosely) compatible with the HCA and can affirm its value ex post facto. But to qualify as a form of political liberalism, such ideas and ideals need to be shown to derive from their countries’ public political cultures, rather than from comprehensive doctrines. The issue is partly methodological: it is not simply whether the ideas are there but how they are derived and justified. They can claim to be free-standing only if they are not overly indebted to nor privilege any comprehensive doctrine.

A political conception of the person

The austerity of Rawls’s method in developing a purely political form of liberalism becomes clear when we compare his conception of personhood with 241

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Nussbaum’s. PL works with a thin theory of personhood. Such ontological minimalism is designed to make this form of liberalism acceptable to those with different conceptions of the good, for containing few commitments about what human beings are like should make political liberalism as compatible as possible with many different comprehensive doctrines. Rawls’s claim to derive those aspects of personhood from the public political culture strengthens his presentation of political liberalism’s concept of personhood as neither deriving from, nor privileging, any metaphysical or comprehensive doctrine. As he says when summing up his political conception of personhood, “in the public political culture of a constitutional democratic regime citizens conceive of themselves as free in these ways” (PL: 34). Yet Rawls is alive to the difficulty of theorizing in a non-metaphysical mode; introducing the section of PL entitled “The Political Conception of the Person”, he cautions that “it is not enough simply to disavow reliance on metaphysical doctrines, for despite one’s intent they may be still involved” (PL: 29). For this reason, he tries to be as explicit as possible about the rationale for the features he imputes to persons. While there are many understandings of personhood in the Western philosophical tradition, political liberalism focuses on the person as capable of engaging in society as a fair system of cooperation over the course of a complete life (PL:18). This much at least has to be assumed by a political conception of the person. Rawls adds to this by explaining that “Since we start with the tradition of democratic thought, we also think of citizens as free and equal persons” (PL: 18–19). This freedom and equality are captured in the second power of personhood, which attributes to all individuals “the capacity to form, to revise and rationally pursue a determinate conception of the good” (PL: 312; cf. 19).22 The first power of personhood imputes the “capacity for a sense of justice” (PL: 19; cf. 315). Rawls defines this as “the capacity to understand, to apply, and to act from the public conception of justice which characterizes the fair terms of social cooperation … [and] a willingness, if not the desire, to act in relation to others on terms that they also can publicly endorse” (PL: 19; cf. 54). As this intimates, persons are also understood to have the powers of reason necessary to exercise their capacities for a sense of justice and for a conception of the good (PL: 19). In FJ Nussbaum works with a thicker conception of the person than she had since her turn to political liberalism and with a much thicker conception of the person than Rawls does. Her method for establishing what features count towards a political conception of personhood is also less overt and less disciplined than Rawls’s. Nussbaum now advances a belief in humans not just as social beings – this was already present in the capability for affiliation – but also as political beings. FJ’s view of personhood “includes the idea of the human being as ‘by nature’ political, that is, as finding deep fulfillment in political relations, including, centrally, relations characterized by the virtue 242

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of justice” (FJ: 86). Such regard for justice for its own sake represents one of the ways in which the HCA’s conception of the person departs from that of the social contract tradition. Here Nussbaum invokes Aristotle but claims that this conception of the person as political is also present in Rawls’s doctrine of reciprocity. Yet this strikes me as an over-reading of Rawls. For him, reciprocity is part of the person’s capacity for justice and is closely linked to reasonableness, to being willing to offer one’s fellow citizens fair terms of cooperation, and to respond when these are offered by others (PL: xliv, 16– 17). Reasonable persons “desire for its own sake a social world in which they, as free and equal, can cooperate with others on terms all can accept. They insist that reciprocity should hold within that world so that each benefits along with others” (PL: 50). This goes some way towards Nussbaum’s position about finding deep fulfilment in relations characterized by the virtue of justice, but only some. To say that persons desire a just world for its own sake is not tantamount to claiming that the human being is “by nature” political and finds deep fulfilment in political relations, including, centrally, relations characterized by the virtue of justice (FJ: 86). Nussbaum’s view in this regard thus represents a significant extension of Rawls on reciprocity. Yet Nussbaum develops her understanding of the person as a social and political being even further, explaining that: The good of others is not just a constraint on this person’s pursuit of her own good; it is a part of her good … a strong commitment to the good of others is a part of the shared public conception of the person from the start… Living with and toward others, with both benevolence and justice, is part of the shared public conception of the person that all affirm for political purposes. (FJ: 158) For political purposes, a person can also be thought of as feeling compassion for the suffering of other members of society, which reflects the fact that each person’s good includes the good of others (FJ: 156–7). Nussbaum finds some precedent for this type of thinking in Rawls’s idea of benevolence (FJ: 91). She does not direct readers to the textual bases for this claim,23 and it seems dubious for two reasons. First, while benevolence is discussed in TJ, it plays little if any role in PL, yet it is to this later work that Nussbaum should turn for guidance in enunciating a purely political liberalism. Second, when Rawls talks in PL of a person’s conception of the good including concern for the good of others, he seems to be referring to a more personal and intimate level than concern for the good of all the members of the polity. When he writes about a person’s conception of the good including “attachments to other persons and loyalties to various groups and associations” and a concern with their flourishing (PL: 19), this seems to be directed at persons and 243

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associations to which people are more personally linked than the polity as a whole. Indeed, Rawls typically uses the language of groups and associations when talking about voluntary organizations and relationships outside the basic structure (although he sometimes also refers to the family in this way). There is little evidence that Rawls takes citizens to see the good of all other citizens as part of their own good.24 So once again, with her view of humans as including the good of others as a part of their good and feeling compassion for the suffering of fellow citizens, Nussbaum seems to have moved some distance from Rawls’s own formulations in PL. With these additions, Nussbaum has produced a well-rounded, rather than thin, conception of the person. She is, of course, at liberty to amend and elaborate on Rawls’s conception of the person as she sees fit, and many of her addenda have great appeal. However, the further she departs from Rawls’s austere political conception of the person, the more it becomes incumbent upon her to defend its continuing status as part of a purely political conception of liberalism. It does not seem faithful to Rawls’s method to simply add features to a conception of the person, dub them political and, by fiat, call this a political conception of the person. Indeed, Nussbaum’s above-noted repudiation of any need to appeal to the public political culture as a source for her ideas about political liberalism makes it hard to know where she gets these ideas about personhood from, other than metaphysical traditions or comprehensive conceptions of the good. Her method for adding to her political conception of personhood seems ad hoc.25 Moreover, it is not hard to imagine reasonable comprehensive doctrines that would not affirm the features of Nussbaum’s putatively political conception of personhood, which dramatically limits her political liberalism’s capacity to host a wide diversity of such doctrines. Consider her speculation that although Amish citizens will not avail themselves of many of the political capabilities on the HCA’s list, they will be glad that they are there for other citizens. In the interests of equality, they will want to have, officially at least, the same rights and opportunities as other citizens. This will, in turn, enable them to affirm the political capabilities (FJ: 182–6). While this might be true, there is no reason to believe that the Amish also feel that their conception of the good includes the good of all other citizens, nor that they find “deep fulfillment in political relations” with all other citizens. As Nussbaum herself says, the Amish believe it “wrong to participate in politics” (FJ: 182–3). How can those who believe this find deep fulfilment in political relations? I do not intend to single the Amish community out here; I invoke them because Nussbaum does, to illustrate how controversial her claim about what it means to be a political being is. Indeed, it is unclear how many citizens would recognize themselves in her depiction of persons as political beings and how many could affirm this from the standpoint of their own conception of the good. 244

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The HCA is supposed to furnish a form of political liberalism that appeals to a diversity of comprehensive doctrines worldwide, but as Nussbaum thickens her conception of the person, she correspondingly diminishes the range of people who can affirm it. It is instructive to compare what Nussbaum offers in FJ with a view articulated prior to her embrace of political liberalism. Her 1990 article “Aristotelian Social Democracy”26 advances many of the same things as the latest incarnation of the HCA. It contains a list of capabilities that should be met to a specified minimum (2002a: 69), for a life devoid of these things will be “seriously lacking in humaneness” (ibid.: 71). This list of items, which are separate from, but related to, one another, will foster thought about what governments can do to promote the good of their citizens (ibid.: 71). Its goods are articulated at a high level of generality, creating space for pluralism and choice (ibid.: 50, 81). Nussbaum claims that her view of the person is ethical– political rather than metaphysical because it is grounded in “the actual selfunderstandings and evaluations of human beings in society” (ibid.: 62). It “can be expected to be broadly shared across cultures” (ibid.: 50; cf. 63). It is also a corrigible framework, allowing that some of its putatively universal features might be shown to be parochial and particular (ibid.: 64). Whatever the changes to the items on the capabilities list, the substance of Nussbaum’s approach seems to have changed little from this earlier text to FJ. The major difference is that the earlier position represents “a (partially) comprehensive conception of good human functioning (in contrast to Rawls’s ‘thin’ theory)” (ibid.: 50). The later version, by contrast, packages itself as a form of political liberalism. Yet if the content of the two versions of the HCA is so broadly similar, the difference between the earlier and later formulations would seem to have to come from Nussbaum’s method for determining which things are political. However, she fails to specify what method she uses for awarding things this designation. Once again, it remains unclear how closely Nussbaum really is following Rawls in articulating a purely political liberalism.

4. A GLOBAL OVERLAPPING CONSENSUS SANS POLITICAL LIBERALISM

When Nussbaum explains how her view qualifies as a form of political liberalism, she emphasizes that the capabilities “can be the object of an overlapping consensus among people who otherwise have very different comprehensive conceptions of the good” (WHD: 5). In “Conditions of an Unforced Consensus on Human Rights”, Charles Taylor suggests that the Rawlsian idea of an overlapping consensus might provide a way of achieving international consensus on human rights. Taylor finds this Rawlsian conception promising because it allows people from very different cultural and metaphysical positions to 245

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agree on a core set of basic norms. “We would agree on the norms, while disagreeing on why they were the right norms. And we would be content to live in this consensus, undisturbed by the differences of profound underlying belief ” (Taylor 1999: 124; cf. 125, 133, 136). Taylor uses the mechanism of the overlapping consensus without any concomitant notion of the basic structure, political liberalism or an international public political culture. As such, his line of thinking might provide a model for Nussbaum, enabling her to retain the aspect of the Rawlsian framework that seems to matter most without having to integrate the other facets of political liberalism. The object of Taylor’s imagined consensus differs from Nussbaum’s, for he is talking about human rights, not the HCA. He points out that the very language of rights might be an impediment to international agreement, and that the only attainable agreement might be about the norms undergirding rights (ibid.: 125–6). Avoiding the language of rights is, in Nussbaum’s estimation, one advantage that the capabilities approach enjoys over the rights approach, for the HCA is not seen as too Western (WHD: 99–100).27 Taylor goes on to point out that, for some, the individualism of rights discourse is also too Western to be considered universal (1999: 126, 130). This could pose an obstacle to the HCA in commanding an overlapping international consensus because moral individualism is, as we have seen, a key component. Nussbaum could respond, however, that affiliation is also a key component, allowing the HCA to complement its individualism with an explicit focus on sociality and community. However, according to Taylor, even the idea of human dignity is seen by some as too Western to command crosscultural agreement (ibid.: 125), and, if correct, this poses a serious problem for Nussbaum for, as we have seen, the idea of individual dignity suffuses the HCA. Taylor’s assessment is quite hopeful for other dimensions of Nussbaum’s project, however, for he points to a way in which Buddhist commitment to non-violence can justify some of the key norms of rights discourse (ibid.: 134–6). But he also identifies a potential stumbling block to international consensus when it comes to gender equality. In many non-Western cultures, gender difference is a powerful component of identity, so that requiring people not to discriminate on this basis is asking for a major shift in their sense of self. The phenomenon of gender difference being a powerful component of personal identity is not unknown in Western cultures either, but because the ideal of non-discrimination has been current there for longer, it can seem less threatening than it might to many non-Western cultures (ibid.: 138–40). While not declaring that it will be impossible for non-Western cultures to embrace the idea of gender non-discrimination, Taylor predicts that this could be a long, hard transition precisely because it entails a redefinition of personal identity (ibid.: 140). If correct, this poses a major problem 246

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for Nussbaum’s hope for global agreement on the HCA, given that nondiscrimination on the grounds of gender is part of capability 7. Taylor maintains, however, that an agreement based on an overlapping consensus is destined to be fragile and that the best way of consolidating it is for each party to learn more about the others’ motivations for affirming the shared norms and, ideally, to develop some respect for those different groundings. The “bare consensus must strive to go on towards a fusion of horizons” because “some degree of sympathetic mutual comprehension” (ibid.: 138; cf. 136, 143) is needed to stabilize the consensus. Nussbaum, by contrast, turns to the idea of informed desire to stabilize any consensus about the HCA (WHD: 152). This does not require people to become familiar with the different cultural underpinnings that lead others to affirm the HCA so, in this regard, her approach is less demanding than Taylor’s. As this brief encounter suggests, there are a number of points at which Nussbaum’s position could come into fruitful dialogue with Taylor’s, in a way that might be more profitable than trying to squeeze her distinctive framework into the criteria of a purely political liberalism. However, casting doubt on whether Nussbaum succeeds in articulating a form of political liberalism is not tantamount to demonstrating that hers is a species of comprehensive liberalism. As noted above, it is possible that this framework is inapplicable to her feminist liberalism, given its global reach. The next chapter considers Okin and Hampton’s feminist liberalisms in light of Rawls’s political–comprehensive distinction. It argues that both adduce partially comprehensive forms of liberalism, although this outcome is arrived at by slightly different routes in each case.

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Justice is not only a virtue of political institutions but is a virtue within the apparently private spheres of family and civil society … [Its scope] should be distinguished from the question of the legitimate extent of state interference in individual lives … the content of principles of justice may be different at micro and macro levels. (Brake 2004: 301) This chapter begins by exploring what sort of liberalism Okin and Hampton adduce from the standpoint of the Rawlsian political–comprehensive distinction. It argues that both thinkers develop partially comprehensive forms of liberalism, although the reasons for classifying them in this way differ slightly in each case. Their partially comprehensive doctrines could strike concern into the hearts of Rawlsian liberals, given Rawls’s conclusion that political liberalism is most hospitable to pluralism. However, while advancing partially comprehensive doctrines, Okin and Hampton remain unwilling to use the state to impose their doctrines on all citizens. In this regard they offer reasonable forms of partially comprehensive liberalism. This chapter concludes with some reflections on the fact that while the liberal tradition has typically focused on laws governing relations among citizens in the public realm, an ongoing challenge for feminist liberals is that other, or rather additional, methods are needed to promote liberal values and attitudes within the household.

1. COMPREHENSIVE LIBERALISM

When liberalism takes the form of a comprehensive doctrine, as Rawls suggests it does with Kant and J. S. Mill (PL: 78, 145, 159, 199; JFR: 33, 191), it: 248

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includes conceptions of what is of value in human life, and ideals of personal character, as well as ideals of friendship and of familial and associational relationships, and much else that is to inform our conduct, and in the limit to our life as a whole. (PL: 13; cf. JFR: 14) Comprehensive liberalism moves beyond affirming the equal liberty of citizens in political life to endorsing autonomy and individuality as personal goods and goals, to be pursued across several areas of life. Political liberalism, by contrast, “does not seek to cultivate the distinctive virtues and values of the liberalisms of autonomy and individuality” (JFR: 157; cf. PL: 98, 200).1 However, Rawls concedes that “the comprehensive doctrines of most people are not fully comprehensive” (JFR: 197) and so acknowledges partially comprehensive doctrines that comprise “a number of, but by no means all, nonpolitical values and virtues and [are] rather loosely articulated” (PL: 13; cf. 152 n.17, 175). Partially comprehensive doctrines are “neither systematic nor complete” (JFR: 33; cf. PL: 13). One of the reasons Rawls takes political liberalism to be more conducive to pluralism than is comprehensive liberalism appears in his claim that the only way a free polity could achieve consensus on comprehensive liberalism would be via the use of state power to suppress dissenting comprehensive doctrines (PL: 37). Yet this is not to say that comprehensive liberals would approve of this. As I understand it, they would not and could not; their constitutive commitment to personal autonomy operates as a self-denying ordinance on the use of state power to impose comprehensive liberalism. If part of what makes a theorist a liberal is his or her commitment to letting each person devise, and live according to, their own conception of the good, this would be breached by using the state to impose a different conception of the good or way of relating to one’s values. While liberals can justify using the state to impose principles of right, they cannot for conceptions of the good. A reasonable comprehensive liberalism cannot, on pain of self-contradiction, require all citizens to become comprehensive liberals.2 Adherence to a form of comprehensive liberalism need not, therefore, betoken intolerance or inhospitality to pluralism.

2. OKIN’S PARTIALLY COMPREHENSIVE LIBERALISM

Okin’s commentators are at odds about how to locate her liberalism within this Rawlsian framework. Nussbaum thinks that Okin is “at bottom … basically a comprehensive liberal” (2003c: 511). Deveaux calls Okin a comprehensive liberal who stresses the “norms of equality and protection for individual 249

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rights and personal autonomy” (2006: 30; cf. 32, 66). Lori Watson reads her as urging “those committed to issues of gender justice to adopt a full-blown comprehensive liberalism” (2007: 97). Rosenblum (2009: 29), by contrast, resists any attempt to situate Okin within this framework. Although she does not label her liberalism in quite these terms, I contend that Okin’s is a partially comprehensive liberalism.3 This is compatible with her own reflections, for when faced with the binary choice between political and comprehensive liberalisms, Okin avers that she does not fit “neatly within either category … I subscribe to a position in between”, calling hers a “hybrid liberalism” (1999b: 129–30). The reasons she gives for this self-classification are, however, slightly different from those I offer for calling hers a partially comprehensive liberalism. To defend this claim, it is useful to consider why Okin’s position falls foul of the three formal features of political liberalism (Chapter 13, §1). At a general level, Okin’s liberalism comports with political liberalism’s third characteristic: taking its general ideals from the public political discourses of liberalism and democracy (Chapter 3, §1). However, the application of her liberal ideals is not confined to the basic structure. Although Okin is profoundly concerned with the justice of family life, and the family belongs to the basic structure, her concern transcends this because the gender structure does. She is troubled by any area of life in which women do not have equal opportunities, and perhaps even equal outcomes, with men. Such areas include religion, the professions, economic activity and the arts. This is not to suggest that she would use the power of the state to enforce justice in all these areas, but it is clear that her concern with gender justice extends beyond the institutions of the basic structure. Okin’s second disqualification as a political liberal comes from the fact that her thought harbours a deeper conception of selfhood than the purely political conception of the person required by political liberalism. An image of the self as inherently rich and diverse underpins her critique of any gendered division of labour in all areas of life, not just the domestic realm. People of both genders should be able to explore their talents and capacities across the gamut of activities. A profitable way of interpreting her comments about a genderless future is to see this as a commitment to the full and free expression of individual personality, unhindered by societal expectations about sex-role differentiation. Both the image of a gender-free society and the development of a more complete human personality contain elements of perfectionism (Chapter 3, §6). But again, this is not to say that she would use the state to impose this. But if Okin fails on two out of three counts to qualify as a political liberal, what prevents her from being considered a fully, rather than a partially, comprehensive liberal? As I argue in Chapter 3, her deeper views about personhood require some unearthing, for she nowhere makes them explicit. They are, therefore, loosely rather than formally articulated and neither systematic nor complete. 250

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As we have seen above, one of the features of comprehensive liberalism is its promotion of autonomy and individuality as personal goods and goals, to be pursued across several areas of life. How does Okin fare on this count? The reason she gives for not being a comprehensive liberal is her concession that “a certain degree of nonautonomy should be available as an option to a mature adult with extensive knowledge of other options, but not thrust on a person by his or her parents or group” (1999b: 129–30). In a democratic society, children should receive an education exposing them to liberal values and enabling them to freely choose their way of life.4 If, as adults, they elect a non-autonomous lifestyle, so be it.5 But if non-autonomy is acceptable only when freely chosen, there is still an affirmation of autonomy involved. Okin’s notion of autonomy, which she never clearly explicates, resembles Marilyn Friedman’s conception of content-neutral autonomy. Friedman distinguishes content-neutral from substantive autonomy on the grounds that a contentneutral conception focuses on the processes and conditions involved in the person’s choice but does not require that an autonomous course of action or form of behaviour be chosen. A substantive conception of autonomy, by contrast, leaves no room to choose non-autonomy (Friedman 2003: 189–90). Permitting people to choose non-autonomous outcomes, Okin is closer to the content-neutral version. Curiously though, Okin deems Friedman’s requirements for the achievement of even content-neutral conception of autonomy too strenuous: It seems unlikely that many women (or indeed many men) in any known society could meet them. How many people’s socialization places much emphasis on fostering their capacity for autonomy or gives them genuine alternatives for how to plan their lives? How many people are free from manipulative interferences as they make their choices in life (given, to mention even three common factors, parental pressures, religious education and capitalist advertising)? How many people are really capable of reflecting on their cultural practices – or even of knowing which of their practices are “cultural” ones. (2005b: 78–9) These remarks sound remarkably defeatist for a liberal, but if they do represent Okin’s views on the rarity of autonomy in even liberal societies, my claim that she endorses even content-neutral autonomy is at risk. However, it is hard to reconcile this defeatist attitude with Okin’s claims elsewhere about the value of autonomy. For example, in the passage just cited about when non-autonomy is legitimate, the chooser’s “extensive knowledge of other options” is necessary. Elsewhere Okin explains that one of the reasons she adheres to liberalism is because “it promotes the opportunity of 251

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persons to live their own lives and to seek out their own conceptions of the good” (1989c: 40). A decade later she declares that “Liberalism’s central aim … should be to ensure that every human being has a reasonably equal chance of living a good life according to his or her unfolding views about what such a life consists in” (1999b: 119). If Okin believes that autonomy is such a rare commodity in any society, it is hard to know why she defines feminism as including “the belief that women … should have the opportunity to live as fulfilling and as freely chosen lives as men can” (1999a: 10; cf. 12). One of the benefits of exposing children to diverse lifestyles is that it makes them “more likely to become thoughtful and reflective about such issues, capable of making autonomous choices for themselves and their potential families later in life” (Okin & Reich 1999: 294). Much of Okin’s work has, more generally, been dedicated to exposing certain cultural practices as patriarchal and to encouraging women and men to see them in this way, suggesting that she proceeds on the assumption that people are “capable of reflecting on their cultural practices”. It is therefore hard to know how to interpret this passage about the rarity of autonomy: its immediate context is a response to Friedman’s suggestion that a content-neutral conception provides a standard for deciding when women’s consent to practices that seem to subordinate them could be respected (2005b: 76–7). It could be the practical application of this standard, its policy relevance, rather than its normative appeal that earns Okin’s scepticism. Or this defeatist view could be one at which Okin had recently arrived, and, had she lived longer, she might have adjusted her liberalism and her feminism to de-emphasize autonomy. This would probably have required her move away from feminist liberalism altogether. Any of these possibilities, or some combination of them, could explain this passage, but all are speculative. For the moment, the only way of reconciling it with my claim that Okin seeks to cultivate a form of content-neutral autonomy in individuals is by focusing on its verb in the infinitive. In the above passage, she seems to be describing people as they are, which is not in itself proof that she does not seek to cultivate autonomy as an ideal or goal, even if most people currently fail to live up to it. If Okin’s feminist liberalism is a partially comprehensive doctrine, the next question to arise from the Rawlsian framework is whether it qualifies as reasonable. This term has a number of dimensions in Rawls’s thought, but its crucial feature for present purposes is that reasonable comprehensive doctrines do not seek to impose their views on citizens with divergent conceptions of the good. A reasonable comprehensive doctrine will not use the state’s coercive power to force others to live according to its lights. Instead, it respects the burdens of judgement, recognizing that reasonable people can legitimately arrive at different conceptions of the good and respecting liberty 252

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of conscience (PL: 60–61; JFR: 35, 183, 191–2). Jean Elshtain’s reaction to JGF implies that Okin is propounding an unreasonable doctrine. Elshtain records that: “When I read the policy proposals in her book’s concluding chapter, it was unclear to me what she could have in mind, save a world dominated by a powerful state juridical apparatus and featuring an extraordinarily high level of intrusion into people’s personal and social lives” (1992: 47). This same implication is present when Nussbaum dubs Okin a comprehensive liberal, and aligns her with Mill and Joseph Raz, holding that all three “see the fostering of personal autonomy in all areas of life as an appropriate goal of the state” (1999b: 108).6 There is a sense in which Okin does want to use the power of the state to promote gender equality. But pace Elshtain’s reaction, Okin thinks of her proposals to reduce vulnerability by marriage as not significantly increasing state intervention in personal life. She likens them to registering births and deaths and filing tax returns (JGF: 182). Splitting earned income equally at source between adult members of a household would require legislation and state enforcement. The provision of adequate child-support payments and the equitable sharing of assets on divorce would too. But these latter things already happen to some extent. Courts mandate child support and issue decisions about the division of marital assets, so Okin is not urging anything especially new or additional here: just asking for greater justice in the way these decisions are made, and perhaps their more active enforcement. Moreover, as we have seen, Rawls believes that it is possible to endorse such actions from within political liberalism, so they might not amount to unreasonably imposing one’s view of the good – as opposed to the right – on others.7 So here much hinges on how these measures are interpreted; if they belong to the right, they are not the fruits of an unreasonable partially comprehensive doctrine. When it comes to equalizing the division of domestic labour, Okin is not seeking state enforcement of this ideal. As she sees it: advocating justice within families is not equivalent to saying that such justice should be directly enforced by law. No household spies or “kitchen police” are inherent in the notion of family justice, and there are many less intrusive ways in which public policy can clearly promote justice within families. (2005a: 246; cf. Cohen 2009: 52–3; Rosenblum 2009: 26; Shanley 2009: 122) Ultimately, what Okin wants the state and other institutions to do is not foist the same way of life on all individuals but provide the opportunities and possibilities for men and women to participate equally across all spheres. She 253

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seems to hope that equal participation will be the outcome but is not using the state to require this. She writes about “encourag[ing] men and women to share the public and the domestic, the paid and the unpaid roles and responsibilities of family life, equally” (2004: 1554). Such sharing should be “strongly fostered” by public policy and institutions. Intrafamilial justice should be a high priority, “albeit in many respects probably not directly legally enforced” (ibid.: 1566). Okin is trying to equalize the background conditions and level the playing field so that all individuals can make genuinely free decisions (cf. Cohen 1992: 269, 285; 2009: 53; Jaggar 2009: 168). She hopes it is possible to promote gender justice in all areas of life without always using the state to this end. Her reluctance to employ state power to impose every aspect of her feminist liberalism should come as no surprise; both the liberal and the feminist sides of her position make her hesitate before turning to the state for enforcement of all ethical matters.8 A very different picture of Okin’s stance towards state power is painted, however, by John Tomasi, who imputes to her a direct-governmentalist approach (2009: 69, 86). He reads Okin as advocating “the establishment of governmental bureaucracies designed to track and correct inequalities in the worth of women’s liberties caused by the resource advantages that men hold over women” (ibid.: 79). Her intrusive policy proposals are liberty-limiting: “by their very nature [they] regularly would require the sacrifice of individual freedom to direct-governmentalist statutes” (ibid.: 86). Yet Tomasi fails to acknowledge, let alone engage, Okin’s argument that her proposals would enhance the liberty of many women. To take one of the policies he cites, a law mandating companies over a certain size to provide on-site day care might appear to be liberty-limiting, but the liberty of those trying to juggle paid employment and childcare would be enhanced. Tomasi fails to ask the key question: whose liberty will be limited by these proposals and whose is limited by the status quo? He also seems to operate with a Hobbesian assumption that liberty and law necessarily exist in a zero-sum relation, but this is not Okin’s view, for she believes that law can sometimes support and promote individual liberty. Tomasi also claims that to ensure paternal child support, Okin advocates “a system whereby the state would genetically determine the paternity of all children of single mothers at birth (presumably by the creation of a national data bank that would gather and hold information on each citizen’s genetic identity)” (ibid.: 87–8). Yet on the page he cites when making this claim (JGF: 178) Okin says nothing about a national data bank of genetic information. This is Tomasi’s own creation. Okin registers support for a proposal by David Ellwood about establishing paternity and enforcing child-support payments. In Poor Support: Poverty in the American Family, published the year before JGF, Ellwood suggested that both biological parents’ social security numbers 254

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be placed on birth certificates. Child-support payments would be automatically deducted from any absent parent’s income. This would: remove the need for the custodial parent to go to court to seek child support; lift the child out of poverty; and confront young men with the consequences of their reproductive activity. Tomasi would be correct to observe that this would limit the liberty of the absent parent to dispose of income as he sees fit, but Tomasi fails to say whether all limitations on liberty are bad or whether biological parents have a duty to provide financially for their progeny. This question of whether biological parents have a duty to their progeny brings us to a position held by Young. Although she does not refer to Okin, we can infer that she would not second Okin’s support for the plan to extract child support from absent parents. Young does not agree that the mere fact of biological parenthood makes a person responsible for a child. Parenthood is a material and emotional obligation to be embraced (or not). Because such responsibility is not incurred by reproductive activity alone, those who do not accept this should not be forced to support their biological children (Young 1997: 111). Here it is also helpful to recall Okin’s asymmetrical assignment of reproductive choice and responsibility to women and men respectively in WWPT. Okin believes that the mere fact of becoming pregnant should not bind women to parenting and emphasizes reproductive choice for women. But it seems that the mere fact of engendering pregnancy can bind men, for under Okin’s scheme, a man can be held liable for what might be a woman’s unilateral choice to bear a child (Chapter 2, §1). Considered from the vantage point of the categories created by Rawls, Okin’s feminist liberalism is best understood as a reasonable partially comprehensive doctrine. The same can be said of Hampton’s feminist liberalism, albeit for some different reasons.

3. HAMPTON’S PARTIALLY COMPREHENSIVE LIBERALISM

In the closing pages of FC, Hampton states that her “contract test is likely to generate a liberal political theory … although I do not have time to spell out in detail the structure of the political liberalism it would generate” (FC: 36). Given her intimate knowledge of Rawls’s writings (Hampton 1989; 1997a: 177; 2007c), this depiction of her liberalism as political is unlikely to be accidental. But when measured by Rawlsian criteria, Hampton’s feminist liberalism fails to qualify as a political doctrine. As was the case with Okin, Hampton’s principles of justice do not apply to the basic structure alone and thus violate the first criterion of political liberalism. Instead, her reworked conception of care also includes what Rawls calls “ideals of personal character, as well as ideals of friendship and of familial and 255

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associational relationships” (PL: 13). SLS is even more prescriptive, outlining an ideal of personal character that it calls individual self-authorship and describes as “a decision to develop the traits, interests, and projects that not only are consistent with meeting your objective human needs but are also ones you want” (SLS: 60). Hampton’s ideal of self-authorship could, of course, be simply a perfectionist dream with no ramifications for politics and thus might not, on its own, move her liberalism from political to comprehensive. However, self-authorship is an aspect of personality that social and political structures should recognize, respond to and foster. Its possibility: would seem to be as much the responsibility of society as it is of the individual … society must not only be prepared to respect a variety of nonstandard choices, but must also provide what each person needs (e.g. educational opportunities and health care) in order that she be able to engage in self-authorship. (SLS: 62) Although she does not specify the mechanisms by which this provision is to occur, it seems fair to assume that the state would be called on to supply some of these things or, at the very least, to create and enforce public policy ensuring their provision. On this count too, then, Hampton’s position overshoots the boundaries of a purely political liberalism. Defying Rawls’s requirement that political liberalism’s conception of the person is “meant as both normative and political, not metaphysical or psychological” (JFR: 19), Hampton presents her conception of the person as a being with intrinsic value as a metaphysical truth. “In my view, there is no way that any person could be right who would deny the equal dignity of all human beings” (1997b: 126). She states her position briefly but forcefully in FC, with a promissory note of fuller exposition: Regardless of the society we develop in, we are autonomous beings possessing a worth that is noninstrumental and equal, with certain needs that ought to be met … a society that teaches its members to believe that some of them are inherently more valuable than others … is importantly wrong … this metaphysical claim requires a defense, and in a forthcoming work I aim to propose one. (FC: 36) In “Should Political Philosophy be Done Without Metaphysics?”, Hampton reflects on developments after TJ where Rawls moves towards a purely political liberalism. Answering her question in the negative (1989: 792), she issues instead “A Plea for Metaphysics” (ibid.: 807). Hampton believes that philosophers should advance this view of the person not simply because it 256

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contributes to the justice and stability of a liberal society but because it is correct (ibid.: 813–14). All these remarks make it clear that her view of the person is not exclusively normative or political; nor does it derive solely from beliefs present in a liberal political culture.9 So on the basis of these criteria too, Hampton’s liberalism fails the test of a purely political doctrine. In the wake of what reads like a frontal rejection of Rawls’s turn away from metaphysical conceptions of personhood, at least in the context of political philosophy (cf. Hampton 1992), it is curious that Hampton should have described hers as a political liberalism. This becomes even stranger in light of her argument that Rawls’s attempt to cordon off a purely political liberalism fails (2007c: 153). It cannot be that she changed her mind in the years following FC because her reflections on Rawls’s attempt to circumscribe a political liberalism surround that essay (see Hampton 1989; 1992; 2007c [originally published in 1994]). Whatever the explanation, we must conclude that Hampton misclassifies her position when she calls it a form of political liberalism. Although Baehr nominates Hampton as providing “perhaps the best example of a comprehensive feminist liberalism” (2002: 151),10 I argue that, like Okin’s, Hampton’s is better understood as a partially rather than a fully comprehensive liberalism, albeit for some different reasons. In Hampton’s case, her liberalism is not as comprehensive as it might be: there are many aspects of “our conduct” that she does not touch on, let alone “our life as a whole” (PL: 13). Although a Christian, she says, for example, little about the place of religion in liberal societies, other than endorsing, as all liberals do, liberty of conscience (2007c: 158). Hampton might have planned to expound a fully comprehensive liberalism but, on the basis of the evidence we have, it seems safest to conclude that her feminist liberalism represents a partially comprehensive doctrine.11 The question remains whether Hampton’s partially comprehensive liberalism qualifies as reasonable. Although she conducts a long examination of the meaning of reasonable in Rawls (2007c: 172), she does not, unfortunately for present purposes, explore its implications for her own position. It is therefore necessary to reconstruct an answer to this question from hints scattered across her corpus. A number of principles constitute what Hampton calls “the common faith of liberalism” (2007c): a set of tenets about government to which all liberals, despite their differences, assent. Political action in a liberal state must be informed by “two moral principles: namely that human beings must always be regarded as free, and that all human beings in our society are political equals” (1998: 45; cf. 1992). In addition, she nominates the beliefs that the state is most likely to respect its members’ freedom and equality when it is a democracy, practices toleration and respects freedom of conscience (2007c: 158; cf. 1997a: 178–9). Her inventory of shared liberal 257

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beliefs includes the conviction that “The state must stay out of the individual’s construction of his own life plans – his ‘conception of the good’” (2007c: 159; cf. 1997a: 180). While all liberals agree with this principle of letting each person develop his or her own conception of the good, they disagree about whether it is best realized through minimal state action or “extensive state involvement” (2007c: 159; cf. 155). The latter position could endorse economic redistribution (ibid.: 159). But it would seem that a liberal state as Hampton envisages it could not legitimately impose liberal views on all people in all their beliefs. This does not necessarily mandate state inaction: states can create conditions conducive to each person pursuing his or her own conception of the good. In Political Philosophy, Hampton adumbrates, and seems to identify with, a position she calls “postliberal”. One of its features is that it takes seriously this problem of when a liberal government should act to protect and promote liberal values and when these are best served by government retraction. Postliberalism effectively follows Mill in recognizing that government is not the sole threat to individual liberty and equality, for such threats can emanate from the cultural, social, economic or domestic realm (1997a: 187, 191–5).12 It concludes that in some instances, government action can foster the values of individual liberty and equality (ibid.: 203): indeed, Hampton interprets non-discrimination and affirmative action laws in this light. Any intransigent stance against government action will, therefore, actually violate liberal values and effectively align the government, which is supposed to uphold liberal values, with those who would deny liberty and equality to all (ibid.: 194–5). But Hampton also makes it clear that this recognition that sometimes government can intervene to promote liberty and equality for individuals does not legitimate unbridled state involvement in all aspects of life. As she says: A government with the authority to interfere in all social practices to correct oppression is generally going to be a government whose power is so substantial that it can (and likely will) use it to abuse and constrain the liberty of its citizens. Liberals are surely right that freedom and equality require constraining government power. (Ibid.: 203–4) Hampton’s most specific and direct remarks on state intervention also evince wariness about too much state involvement. Discussing the spectrum of wrongful sexual acts, she asks whether all should be criminalized and invokes liberals’ “general interest in keeping the state out of intimate affairs, an interest that feminists in particular have reason to take seriously in view of their opposition to laws controlling abortion”.13 A feminist liberal 258

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is therefore likely to be “leery of involving the state in cases where the diminishing aspects of the sexual experience are less severe [than in rape] or where the messages implicit in the experience are more mixed” (DWDR: 151). Here Hampton is effectively allowing that some things can be morally wrong and can convey disrespect to others without turning to the state to punish such behaviour. She makes this point explicitly in another writing, declaring that “An action can be a candidate for retribution, without being an action that the state should punish” (2007d: 143). She discusses ways in which individuals can convey their disapproval for a wrong action without turning to the state and argues that with its variety of agents and actions, retribution is a wider category than punishment. Reticence regarding the use of the state to enforce a moral view is also evident in Hampton’s references to pornography. Her adamance that individuals be regarded as ends in themselves and not as instrumental to others’ purposes could underpin a rejection of pornography and prostitution, for pornography aimed at heterosexual consumers typically portrays women as existing in order to provide men with sexual pleasure. Hampton considers the conflict between feminists such as MacKinnon and Dworkin, who want legislation to address the harms pornography does, and liberals who wish to protect freedom of speech. She redescribes this as a clash over threats to liberty and equality that emanate from culture and society in the first case and those that emanate from government in the second (1996: 20–21; 1997a: 201). Because she has absorbed the Millian lesson that not all threats to liberty and equality originate from the state, we might expect her to side, or at least sympathize, with MacKinnon and Dworkin. However, Hampton doubts “whether feminists are right to rely so heavily on the state to combat these threats” (1996: 21). Returning to this issue in DWDR, she seems to accept MacKinnon’s argument that pornography debases all women, but depicts as “a contested question” whether this suffices to limit free speech (DWDR: 132; cf. 2007d: 128, 149). She revisits the proposal to prohibit “certain forms of pornography” at the chapter’s conclusion, presenting it as an indirect way of reducing sexual violence against women, but voices no reservations about this use of state power. She suggests censorship as an alternative to criminalizing the sort of problematic forms of sex that are less unambiguously wrong than rape alluded to above (DWDR: 151–2). But censorship still legitimates state intervention. Elsewhere, however, Hampton notes that censorship can prove counterproductive, for censorship laws have been invoked to limit the dissemination of gay and lesbian and, in some cases, even feminist material (1997a: 205). So while it is hard to conclude definitively what Hampton’s view on the prohibition of pornography is, it is telling that she does not unequivocally urge its suppression by the state. This illustrates again that feminist 259

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liberals can criticize activities or practices without immediately resorting to state action to outlaw or punish them. Failing to use the government to enforce one’s beliefs does not, however, amount to acceptance of the status quo; Hampton alludes briefly to the power of feminist reform movements to change ideas (1996: 21; 1997a: 206).14 Another alternative is to try to influence the educational system (DWDR: 152). Her aforementioned view about the role of political philosophers in promoting the truth about the intrinsic worth of persons could also be relevant here; Hampton seems to think that rational persuasion can be a means of transforming culture and society. Even if she were willing to deploy them, top-down methods of promoting such respect would be likely to be insufficient. This is clear when she talks about the appropriate role for government in reducing oppression, claiming that history shows governments to be most effective in transforming society when they work with social movements. Citing the labour movement as an example, she holds the same to be true: with respect to combating racism and sexism; governments cannot legislate away racist or sexist attitudes. What governments can do … is to align themselves in a variety of ways … with forces committed to opposing these attitudes, thus encouraging the evolution of societal forms that give every human being the chance to live freely and equally. (1997a: 204) This underscores Hampton’s twin beliefs that liberal governments should not be neutral with respect to liberal values of freedom and equality for all individuals and that government action alone cannot solve all the problems posed by inegalitarian conceptions of human worth. This brings us to the question of whether Hampton would allow that a sexist (or racist or otherwise inegalitarian) conception of the good should be tolerated. Such inegalitarian doctrines of worth are, as we have seen, wrong in her view. However, it is not clear that she would try to suppress them through use of the state in any area beyond the principles of right. As she observes in the passage just cited, the government’s ability to change attitudes via legislation is limited. While some actions manifesting disrespect for others can be outlawed or punished, attitudes cannot. A member of a household can persistently show disrespect for one or more fellow members without the law having any ability to change this. Laws can shape, but not control, such attitudes. So Hampton would have to recommend means other than the law for shifting attitudes. Her repeated emphasis on personal responsibility for change is also relevant here; as we have seen, she urges individuals to end any complicity they might have in relationships that disrespect them. Her 260

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feminist liberalism as a form of consciousness-raising is, in turn, one step towards this.

4. TRANSFORMATIVE LIBERALISM

The liberal tradition has typically focused on the normative justification for laws governing relations among citizens in the public realm. The feminist liberals spotlighted in this book care, however, about violations of liberal values wherever they occur, and advocate extending many liberal values to the household. Yet they also recognize that the law is not always a suitable instrument for realizing this. Laws punishing physical or sexual abuse of family members, and dissemination of information about such laws, might well encourage family members to treat one another with respect, or at least reduce the more obvious manifestations of disrespect. Laws against discrimination in settings such as workplaces, schools and universities, which typically unite erstwhile strangers in cooperative enterprises, allow people of different genders, races and sexualities to interact in conditions of greater freedom and equality, and might eventually affect personal attitudes in a more egalitarian direction. So this is not to suggest that the law has no effect on personal attitudes and emotions. But it cannot mandate them. We cannot be ordered by the court to respect the intrinsic worth of our familiars. Because feminist liberals have to care about the ethical formation of liberal subjects not just as citizens but also as friends, familiars and intimates, the sort of personal dispositions they desire require additional resources beyond the law and the practice of public reason for their cultivation. In two major respects – the emphasis on personal dispositions and the reaching out to institutions and practices beyond the state to foster these – the feminist liberalism elaborated here dovetails with Button’s depiction of transformative liberalism.15 In the major moments of the social contract tradition, Button detects “a significant transformative ethos within the heart of modern liberalism … a shared commitment to the formation of civic character and the cultivation of forms of political self-understanding and ethical sensibility upon which a liberal political order depends” (2008: 5–6; cf. 3). Button claims that the social contract theorists denied that this transformative process was “the exclusive purview of government or political power” but saw it instead as operating “through the interplay of institutions, culture and identity” (ibid.: 6; cf. 7).16 As well as intersecting with Button’s work on transformative liberalism, the continuing challenge for feminist liberalism to find non-state ways of promoting change in attitudes and behaviours converges with Kenji Yoshino’s recent discussion of what he calls “covering”. Individuals cover when they 261

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obscure some disfavoured aspect of their identity that is, legally at least, protected from discrimination. Individuals may downplay their gay or lesbian identity, or the fact that they have children or other dependents who might impose demands on their working life, or conceal or fail to mention a disability or a minority ethnic background. Covering poses a new challenge for civil and political rights, being “the most widespread form of assimilation required of us today … so long as such covering demands persist, American civil rights will not have completed its work” (Yoshino 2006: xi). Yoshino advocates reforming equality law to reduce the perceived need to cover while acknowledging that “our generation of civil rights will also increasingly need to look outside the law. Many covering demands occur at such an intimate and daily level that they are not susceptible to legal correction” (ibid.: 24). As he explains, “While law can help us be more human in crucial ways, it will never fully apprehend us … [this] means our culture must do that work” (ibid.: 26; cf. 192–5). However, this aspect of the feminist liberal project – when to call upon the state to promote and enforce feminist liberal values and when to look to non-state action17 – needs more sustained consideration than any of the figures studied here afford it. For example, each of the feminist liberals examined in this book believes that we can strive for greater justice in personal life by urging individuals to become more just in their interactions with one another, even if no fine or penalty awaits those who fail and even if the sort of justice we owe to intimates, friends and familiars differs in significant, and perhaps even dramatic, ways from the justice owed to strangers and fellow citizens. It would help for them to make explicit their belief that the language of justice can be injected into such situations, relationships and institutions without always entailing the need for state action to uphold and enforce it.18 Feminist liberals talk about the family and personal relationships in terms of justice while equivocating about whether this brings family dynamics under the rubric of the right rather than the good. On the one hand, in the interests of their liberal respect for pluralism and individual choice, they want to leave some, and perhaps ample, room for matters of family organization to be decided by individuals. This situates family relations as part of the good. On the other hand, they want the state to intervene more consistently in family dynamics than it has in the past, based on their recognition that some families can be dangerous or at least damaging for more vulnerable members. In some instances they want the state to influence the background conditions that affect family dynamics. In these cases, family relationships fall within the purview of the right, with state involvement being not only warranted but welcome. So the family’s relation to the distinction between the right and the good is not clearly addressed by these feminist liberals, as 262

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it was not by Rawls. Indeed, this important question is not even framed as such by them. It might be that the family confounds this sort of separation between the right and the good, just as it confounds any neat public–private distinction, and so serves as an ongoing reminder of the inadequacy of binary distinctions. But even making this point clearly would advance the debate. These feminist liberals encourage more, and more consistent, state intervention in society, economy and household in the service of individual liberty and equality than do many of their fellow liberals. But as we have seen, they also recognize that state involvement is no panacea and that considerable wariness is warranted. This is so for two major reasons: as liberals, they also want to protect a sphere of freedom for all individuals; and they perceive that the state is not always the appropriate vehicle for implementing the changes they seek. They award priority to liberal values of equality, liberty, choice, pluralism and so forth, and answering the question of whether a particular value is best served by state involvement or retraction follows upon this. They take no a priori stance on government involvement; it is neither end nor evil in itself. Their focus lies instead with liberal values, making the question of the state’s role a more contingent and instrumental one. This is well illustrated in Nussbaum’s admission that although the government is responsible for ensuring the capabilities to a minimum level, it does not have to be the agent of this provision (Chapter 11, §1). The feminist liberals studied here are not necessarily to be faulted for failing to provide clear and distinct guidelines on this vexed question of state intervention: after all, one of the greatest liberals ever was unable to provide definitive guidance regarding legitimate state limits on individual liberty. But it would be helpful for feminist liberals to address Mill’s question head on, even if their answers are no more final than his. Of the three thinkers surveyed here, Nussbaum comes closest to this with her thesis that state intervention be informed by the goal of capabilities promotion, but given the intramural complexity of the HCA framework, her global canvass and her commitment to multiple realizability, many important matters remain unresolved. Chambers’s summary of her own stance towards the role of the state provides a lucid statement of the position I take Okin, Hampton and Nussbaum also to hold. According to Chambers: the state does not exhaust the possibilities for change … change can come from individuals without necessarily intersecting with the state. Sometimes, indeed, state action (or certain forms of it) is explicitly undesirable … change might come not only from individual or familial action; it might be the result of nonstate social movements. My argument, then, is not for state intervention as 263

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the only or even the best method for change. I wish to suggest only that the state can be an important instrument of change, and that more state action may be justified in principle than liberals tend to allow. (2008: 78) In casting contemporary feminist liberalism as a type of transformative liberalism that looks when necessary beyond the state for mechanisms to advance its conception of the good, it is helpful to close by considering briefly some concrete ways in which feminist liberal values can be articulated and promoted without reliance on the state. Popular culture is an important domain expressing and influencing attitudes, emotions and behaviours. Feminist liberal themes and motifs can be found there, without making any claim that all, or even most, elements of pop culture express and disseminate such ideas. The well-known Otis Redding song “Respect”, which has enjoyed many iterations, emphasizes the importance of intimate partners respecting one another. Another example comes in “I Hope”, co-written by the Dixie Chicks and Keb’ Mo’, for their song instantiates a number of feminist-liberal concerns. It draws a parallel between public and private violence and underscores the family’s role as the first school of social relations. Its first two verses provide examples of military and domestic violence along with attitudes that either sanction or tolerate them. The first and second rounds of the chorus reject both forms of violence and their attempted legitimations. The chorus also points out that because children imbibe these attitudes from adults, things will not change. The song urges listeners to end these attitudes and practices. Differences and disagreements will not disappear, but more peaceful ways of resolving them can be found. Without offering much by way of specific strategies, the song calls for love, joy and laughter and the hope that all can live more fearlessly. The lyrics’ constant invocation of “us” and “we” makes it clear that listeners are responsible for reducing violence and promoting peaceful resolutions of conflict. Media depictions of personal and domestic relations can also provide a way of advancing feminist liberal ideals, with the public representation of the Obama marriage providing a powerful illustration. Barack and Michelle Obama are repeatedly portrayed as one another’s intellectual and personal equals whose palpable love is built on a solid foundation of mutual respect, admiration and support. This claim presupposes no privileged knowledge of the actual dynamics of the Obama relationship: rather, the way their marriage is depicted embodies many feminist liberal values. However, cognizant of the overly idealized image of their marriage that can be projected, Michelle Obama points out that their partnership takes work. The image of a flawless relationship is “the last thing that we want to project … It’s unfair 264

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to the institution of marriage, and it’s unfair for young people who are trying to build something, to project this perfection that doesn’t exist” (quoted in Kantor 2009). In a popular magazine interview, Obama expressed a position akin to Hampton’s, in particular, on the need for care of the self to be included in caring relationships. She recalls that “my mother taught me what not to do. She put us first, always, sometimes to the detriment of herself. She encouraged me not to do that. She’d say being a good mother isn’t all about sacrificing; it’s really investing and putting yourself higher on your priority list” (quoted in Vaccareiello 2009: 138). But Obama acknowledges that, “That’s hard for women to own; we’re not taught to do that”. Despite her mother’s encouragement, it took her a while to feel comfortable putting herself on the priority list. But she is convinced that doing so makes her family relationships better for all concerned. “I can make choices that make me happy, and it will ripple and benefit my kids, my husband, and my physical health” (quoted in Vaccareiello 2009: 138).19 Also relevant to this discussion of media portrayals of relationships is the widespread discussion in 2009 of the intimate partner violence inflicted on the singer Rihanna by Chris Brown. This discussion drew attention to the frequency of such violence, presented it as thoroughly unacceptable, considered possible causes of Brown’s action and debated how Rihanna should respond. The feminist liberal campaign to have women think of themselves as ends in themselves is necessary but not sufficient for a change in women’s status and self-understandings. Men also need to see and treat women as ends in themselves. A good illustration of this appears in the US grass-roots organization “Walk a Mile in Her Shoes”. This movement by and for men concerned about sexual violence against women engages in community education about steps that men can take to minimize and ultimately eliminate violence against women. It also mounts walks by men to protest violence against women and to raise money for organizations working in this field.20

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CONCLUSION

This book has argued that contemporary feminist liberalism warrants serious consideration by feminist and liberal theorists alike. Its approach has been sympathetic but not uncritical. It has shown that three major contemporary proponents of feminist liberalism – Okin, Hampton and Nussbaum – attempt thoughtful, albeit not identical, syntheses of feminism and liberalism. The “caricature then critique” treatment of feminist liberalism so prevalent in the literature has been eschewed. Yet while sympathetic, the approach has not been indulgent: I have detected problems, questions and lacunae in the work of all three, as well as pointing to areas of concern to emerge in the secondary literature. This approach is informed by a conviction that the most robust criticism issues from such careful and respectful reconstruction, from trying to advance and then attack the strongest possible form of an argument, rather than revelling in the pyrrhic victory that comes from destroying some halfbaked version of a position. My discussions should, therefore, serve both defenders and detractors of feminist liberalism alike by allowing them to capitalize on the real strengths, or pinpoint some of the genuine weaknesses, of this school of thought. Yet even at the end of this detailed encounter with such a large slice of contemporary feminist liberalism, many questions remain. There is, for example, an unacknowledged tension between Okin’s desideratum of equal outcomes for men and women across all spheres of life and her commitment to pluralism and free individual choice. It would have behoved her to explain more fully her ideal of a genderless future. A number of complexities inhabit Nussbaum’s HCA framework, including the presence of Ur-capabilities and the status of free choice. Nor is it obvious that the concept of privacy really is as dispensable as she suggests, while her claim to offer a purely political form of liberalism generates myriad doubts. The phenomenon of adaptive preferences poses an acute problem for feminist liberalism. As liberals, they want to valorize free individual choice; as feminists, they are sensitized to the ways 266

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that subordination and oppression can diminish an individual’s expectations. Nussbaum gives the most attention to this dilemma but offers no obvious way out of the paradox of presenting the HCA as embodying the desires and aspirations of ordinary women around the globe and recognizing that many women’s preferences have been shaped in conditions of subordination and injustice. Ultimately, none of the three thinkers studied here offers clear guidance as to when and how we can feel confident that a person’s choices were made in conditions of justice, and so should be respected.1 Contemporary feminist liberalism also needs to pay closer attention to the status of children in its theories of justice. The thinkers surveyed in this book have gone some way towards this. Hampton does not apply her model of respecting others as beings of intrinsic worth to radically unequal relationships, which provides a way of recognizing children’s dependency. However, she includes an expectation that children who can will come to show respect for others commensurate with their maturation. Nussbaum is alive to the fact that because functioning can be preparatory to capability, childhood is important for laying the groundwork for many adult capabilities. These feminist liberals have also incorporated children into their theories by following Mill and emphasizing the family’s pedagogical function. Nonetheless, they do not reflect sufficiently on the implications of childhood for their theories of justice.2 An approach underscoring equal personhood and the intrinsic worth of each individual while shining a spotlight on family dynamics must become more explicit about which of its normative claims apply fully, partly or not at all to children. Of course the category of children is itself heterogeneous: a four year old and a fourteen year old differ in many ways, making attention to the fact that most children change over time essential. Additional questions for feminist liberalism revolve around the constitution of the category of women. Young is surely correct to claim that “without some sense in which ‘woman’ is the name of a social collective, there is nothing specific to feminist politics” (1997: 13). But the challenge for contemporary feminist thought is to “retain a conception of women as a group … [while] at the same time clearly rejecting an essentialist or substantive conception of gender identity” (ibid.: 21). Contemporary feminist liberals do not assign women to a single oppressed category by virtue of their biological features nor any essence of womanhood. Women are, for the feminist liberals, what they are for MacKinnon: “a political group – oppressed, subordinated, and unequal” (2001: 710; cf. 1991). Their category of women is political, not metaphysical. It is constituted, in the first instance, by evidence of suffering, deprivation and disadvantage.3 Feminist liberals thus focus on the objective conditions that mark women’s lives more than they do men’s: the anticipated and actual larger burden of childcare and domestic work; lower pay; vulnerability by marriage; the threat of rape; susceptibility 267

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to domestic violence, sexual harassment and so on. But this does not require women to interpret their experiences of oppression and subordination in the same way. The fact that women are more likely to be raped than are men does not acquire its salience from the requirement that all experience rape in the same way. The fact that women in heterosexual households carry a disproportionate share of domestic duties does not require that all feel equally burdened by this. So despite the differences among women, the category retains a political salience for feminist liberals based on the fact that many women suffer similar injustices, even if they do not all experience these in the same way. Conversely, if women can be placed in a single category by virtue of such disadvantages, burdens and impediments, once these are lifted it becomes impossible to know what salience sex or gender will have in social life or personal identity, or even how the category “women” will be constituted.4 Young uses the term feminism to refer to “a mode of questioning, an orientation and set of commitments” shaped by two considerations. First, a feminist orientation attends to “the effects of institutions, policies, and ideas on women’s well-being and opportunities, especially insofar as these wrongly constrain, harm, or disadvantage many if not all women” (1997: 3). If feminism as a mode of questioning finds that some or many women are not harmed by particular institutions, policies or ideas, this will not become a factor in its thinking about justice. However, where such institutions, policies and ideas do burden all or many women compared to men, feminism is committed to trying to alleviate those burdens. But to be effective, identifying the burdens must take account of women’s different social locations. While some of the injustices women endure transcend class, racial and national lines – such as domestic violence, sexual harassment, lower rates of pay – other forms might be more class-, race- and nation-specific. With its focus on suffering and disadvantage, feminist liberalism must be cognizant of both these similarities and differences if it is to determine the ways in which women are disadvantaged and to advance remedies for these. As Nussbaum insists, “We should not overlook the questions raised by these differences, and we cannot formulate a just social policy if we do” (1999f: 34). This brings us to the second consideration Young attaches to a feminist orientation: “it draws on women’s experiences” (1997: 3). Feminist liberalism needs to improve in this regard, by considering not just the objective conditions of women’s lives relative to men’s, but also women’s subjective responses to those conditions. Yet whatever the shortcomings in the way these feminist liberals have so far incorporated differences among women into their theories, their liberalism, along with their feminism, mandates more careful attention to this. Four mutually reinforcing reasons support this claim. The first is feminist liberalism’s commitment to equal moral personhood. The 268

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feminist liberals discussed here would hold this to preclude acceptance of any a priori, gendered standard of what it is to be human. If women have to conform to a masculine standard to be considered human, they are not being treated with equal respect. This logic applies to the idea of what it means to be a woman: there should be no a priori standard for this. If all are measured by a particular and limited understanding of what it means to be a woman, based on the experiences of some women only, their moral personhood is not being respected. One of the things feminist liberals find especially attractive about the liberal tradition is the normative resources it supplies for condemning fixed social hierarchies and unjustified power differentials. For Okin, “liberalism properly understood” entails a “radical refusal to accept hierarchy” (2004: 1546). Nussbaum seeks to articulate a form of liberalism “which rejects feudalism and hierarchy in an even more thoroughgoing way than classical liberalism did” (FJ: 221). Contemporary feminist liberalism must, therefore, be alive to indefensible and harmful hierarchies wherever they manifest themselves. One of the things emphasized in the intersectionality literature is that women are differently located vis-à-vis such hierarchies. If race and gender form interlocking hierarchies of oppression in some women’s lives, it would be self-contradictory for feminist liberals to ignore this by pretending that all women are affected in the same way by the single hierarchy of gender. Nussbaum addresses this directly by declaring that her feminism: is part of a systematic and justifiable program that addresses exclusion and marginalization across the board in the name of human dignity. To that extent, the liberal feminist is in a better position than are many other feminists to show her fellow women that she has not neglected legitimate claims that are peculiar to their own class- or religion- or race-based identities. (1999f: 33) Third, feminist liberals with a Rawlsian pedigree should care about women’s diverse self-interpretations because one of Rawls’s central aspirations from the first to the last of his formulations of justice as fairness was that members of the well-ordered society embrace its principles of justice as their own and condone them freely and fully, rather than experiencing them as alien impositions (Cohen 1997: 8, 10). To know how far from, or close to, this desideratum one’s precepts of justice are, it is essential to know something about the self-interpretations of the persons for whom the theory is being formulated. If principles of justice are more burdensome to some groups than to others, that is a problem from a Rawlsian perspective with its commitment to the freedom and equality of all individuals. If feminist liberals fail to attend to women’s diverse self-interpretations, they render themselves 269

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unable to consider how heavily their recommendations might fall on some members of society. Finally, a central part of the contemporary feminist liberal project encourages women to see themselves as ends in themselves. Okin, Hampton and Nussbaum deem this ideal to be invaluable for women, who for so long have been encouraged or required to subordinate themselves to others. Consider Okin’s complaint that “the supererogation that is expected in families often occurs at women’s expense” (JGF: 31). Compare Nussbaum’s lament that “women have too rarely been treated as ends in themselves, and all too frequently treated as means to the ends of others” (1999f: 22). Recall Hampton’s hope that as people become more aware of themselves as beings with intrinsic worth, they will grow less tolerant of acts, relationships or practices manifesting disrespect for them. On this point Beauvoir’s existentialist feminism complements contemporary feminist liberalism. Beauvoir was deeply disturbed by the way twentieth-century Western women continued to see themselves, and be seen by men, as the second sex. Despite their attainment of some formal political and legal equality with men and the expansion of educational, professional and employment opportunities, many women went on thinking of themselves as secondary, derivative, inferior, inessential. Although none of the feminist liberals studied here says much about Beauvoir directly,5 her insight about women’s tendency to internalize a sense of themselves as beings of secondary importance resonates throughout their writing. Consciousness-raising tends to be associated with more radical forms of social theory (see e.g. MacKinnon 1989: 83–105). Yet all these feminist liberals manifest a strong commitment to changing women’s self-understandings by encouraging them to see themselves as ends in themselves. Okin’s feminist adaptation of Rawls’s OP, the thought experiment associated with Hampton’s feminist contractarianism and Nussbaum’s HCA all include an educative or consciousness-raising element, for each of these theoretical devices encourages people to review their life as if they possessed dignity equal to others. Urging women to see themselves as ends in themselves is thus part of contemporary feminist liberalism’s consciousness-raising agenda, and any concern with consciousness-raising must include attention to self-interpretations. But as this indicates, attending to women’s diverse self-interpretations does not amount to accepting these as final, decisive or incorrigible. Many women’s sense of themselves has been formed in conditions of injustice. In so far as this affects and infects aspects of their self-interpretations, those aspects should, from a feminist liberal standpoint, be challenged and changed. The Kantian regulative ideal of each human being treated as an end in himself or herself thus provides a powerful lever to contemporary feminist liberals. It enables them to criticize the situation of many women and supplies a 270

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goal to be striven for. But caution is needed when generalizing about women in this way: it would be hard to deny that some women are closer to membership of the kingdom of ends than others, especially considering the situation of women worldwide. Yet even a woman with robust self-esteem can have her sense of her own value dented or damaged by rape, sexual violence and even casual forms of sexual humiliation. No matter how much she sees herself as an end in herself, myriad social forces are just waiting to tell her otherwise, from street harassment to the use of women as adornment in advertising and at public events. As this indicates, the feminist liberal campaign to have women think of themselves as ends in themselves is necessary but not sufficient for a change in women’s status and self-understandings. Men also need to see and treat women as ends in themselves who are not available for rape, violence or sexual abuse, humiliation and harassment. Any discussion of the constitution of the category or women also needs to take the sex–gender distinction into account. As Chapter 3, §6 noted, the terms sex or sexual difference have typically been taken by feminists to encompass the physical or biological aspects of human life, with particular reference to the roles played by males and females in reproduction of the species. By gender, feminists have referred to a slate of characteristics and behaviours that men and women are encouraged and even trained by their societies to exhibit. It has, however, become de rigueur to question the sex– gender separation. This is largely owing to the influence of Butler, who conducts an interrogation of this distinction in two major ways. First, she notes that if sex and gender really are separate – the first referring to bodies, the second to behaviours – there is no reason why male bodies must exhibit masculine behaviours, traits and characteristics nor female bodies feminine ones. If sex does not dictate, and is detachable from, gender, those sexed as female could exhibit masculine traits, and vice versa. As Butler says: When the constructed status of gender is theorized as radically independent of sex, gender itself becomes a free-floating artifice, with the consequence that man and masculine might just as easily signify a female body as a male one, and woman and feminine a male body as easily as a female one. (1990: 6) The feminist liberals in this book would agree that sexed bodies need not manifest the gendered behaviours that social norms attach to them. The creative and even transgressive possibilities for personal identity opened up by the sex–gender separation mesh with Okin’s anticipation of gender’s elimination (Chapter 3, §6). And in a largely critical review of Butler’s work, Nussbaum calls her questioning of the sex–gender distinction “relatively original” (1999e: 40). Butler’s point strikes me, however, as reformulating an insight 271

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that feminists have long proffered. Consider here Wollstonecraft’s (selective) transvaluation of the image of masculine women in her author’s introduction to A Vindication of the Rights of Woman: [F]rom every quarter have I heard exclamations against masculine women, but where are they to be found? If by this appellation men mean to inveigh against their ardour in hunting, shooting, and gaming, I shall most cordially join in the cry; but if it be against the imitation of manly virtues, or, more properly speaking, the attainment of those talents and virtues, the exercise of which ennobles the human character, and which raises females in the scale of animal being, when they are comprehensively termed mankind, all those who view them with a philosophic eye must, I should think, wish with me, that they may every day grow more and more masculine. (1792: Introduction) Butler’s second way of interrogating the sex–gender distinction is more thoroughgoing and deconstructs this as a false dichotomy. It is not sufficient to say that gender deals with aspects of identity that are socially constructed: sex is also a constructed category because we cannot achieve unmediated knowledge of an unchanging, natural, universal female (or male) body. As she posits: If the immutable character of sex is contested, perhaps this construct called “sex” is as culturally constructed as gender; indeed, perhaps it was always already gender, with the consequence that the distinction between sex and gender turns out to be no distinction at all. (1990: 7; cf. 8, 25, 112, 114, 125, 139, 147; Nicholson 2000: 289–90)6 The feminist liberals under discussion would be more sceptical about this suggestion that gender and sex are equally socially constructed. Although they do not base the category of women on biological features, nor do they deny that there might be some salient physical differences between men and women. Remarking on this aspect of Butler’s thought, Nussbaum demurs that “it is much too simple to say that power is all the body is … Culture can shape and reshape some aspects of our bodily experience, but it does not shape all the aspects of it” (1999e: 42). Okin and Hampton would follow in resisting the forced choice between seeing the body as “fully” or “not at all” socially constructed. The feminist liberals would retain the possibility that gender roles are wholly constructed but allow that sex differences have some reality and significance, albeit not as much as they have hitherto been 272

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awarded. According to Nussbaum, “what feminism needs, and sometimes gets, is a subtle study of the interplay of bodily difference and cultural construction” (ibid.: 42).7 As Nussbaum responds to Butler, women’s capacity for pregnancy is an obvious example of a sexual difference between men and women that is largely, but not wholly, socially constructed (ibid.). Let us start with the qualifications of this claim. Not all biological females possess the capacity for pregnancy: pre-pubescent, post-menopausal and some infertile women do not. Along with the inability of some, other women choose not to become pregnant. So it is an exaggeration to say that all women have a capacity to become pregnant. And becoming pregnant is not synonymous with giving birth: some women become pregnant but do not, or cannot, carry the baby to term. But in so far as this capacity for pregnancy is something that many women but no men have, for at least a certain phase of their lives, this gives those women something in common with one another at the biological level. Impregnable women who are raped will, for example, have additional concerns to those of non-pregnable ones and raped men. Forced pregnancy as a tool in genocide (MacKinnon 2006: 212, 221) obviously has a different force for impregnable women than for men or non-impregnable women. Women who actually are pregnant share material needs that non-pregnant women and men do not have. Pregnant women have a greater need for calories and for particular vitamins to nourish the foetus. As labour approaches, they need a safe and sheltered place in which to give birth. They need assistance, at the very minimum, with delivery. They need post-partum rest. Women who are pregnant and give birth need not interpret this experience in the same way for their physical condition to be the basis of some temporary commonality among them. Interpretations of their situation can vary greatly from woman to woman, from culture to culture and from one pregnancy to the next. Women’s tendency to menstruate represents another biological basis for some commonality among some women; this is a sexual difference between all men and many women whose meaning is largely but not wholly socially constructed. Once again, not all women menstruate. Pre-pubescent, postmenopausal and pregnant women, along with those taking oral contraception, do not. Other physical conditions can cause menstruation to cease for shorter or longer intervals. And among those who do menstruate, this can be a very different physical experience, with some having few symptoms while others are temporarily debilitated by it. But menstruation is not something that men undergo, giving menstruating women different physical needs from them. In crisis situations, for example, many women need supplies of sanitary materials that they might not be able to procure for themselves. The biological basis of being a woman should not be dismissed entirely. But nor should it be given the excessive weight it had been before the 273

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advent of feminism. The feminist liberals surveyed here strive to recognize the material needs of the body, and to acknowledge that in some cases women’s needs differ from men’s. Soldiers in combat, for example, might need to urinate standing up, which is an easier, or at least less messy, feat for men. But in other cases, women’s bodily needs differ among them: black women in the US, for example, currently suffer higher rates of breast cancer and infant mortality than do white women. This immediately locates needy bodies in a society marked by racial hierarchies. Nor is this to deny that men’s bodily needs can vary from one another based on age, health, able-bodiedness, and so on. And in some instances men and women are more similar than is typically allowed: the US campaign to distribute the human papillomavirus (HPV) vaccine (Gardasil) only to adolescent women ignores the benefits that would come from vaccinating young men too. But this willingness to recognize that male and female embodiment can be a mark of different material needs need not commit feminist liberals to holding that gender is to culture as sex is to nature, nor to believing that there is “‘a natural sex’” that is “produced and established as ‘prediscursive’” (Butler 1990: 7). Nor must they view sex “as the unchanging constant upon which variable social constructions of [gender] are built” (Nicholson 2000: 291). Instead, as I read them, Okin, Hampton and Nussbaum would agree with Linda Alcoff that: The possibilities of pregnancy, childbirth, nursing, and, in many societies, rape are parts of females’ horizons that we carry with us throughout childhood and much or all of our adult life. The way these are figured, imagined, experienced, accepted, and so on, is as variable as culture. But these elements exist in the female horizon, and they exist there because of the ways in which we are embodied. (2005: 36) They would, of course, wish that of the embodied experiences listed here, rape could disappear from all women’s (and men’s) horizon. They would also share Alcoff ’s belief in the possibility of developing an account of sexual difference that gives biology some role without making it determinative (ibid.: 25). Retaining some version of the sex–gender distinction need not commit its users to “an absolute distinction of the old-fashioned sort between culture and reified nature” (ibid.: 35). Lest this sound like a reversal of my claim above that the feminist liberal category of women is political not metaphysical, it should be noted that they would hope for a way of recognizing women’s particular bodily needs, when they exist, without this working to women’s disadvantage.8 If women were not disadvantaged by pregnancy relative to men, for example, this need not remain a feminist concern.9 274

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If I have characterized Okin, Hampton and Nussbaum’s views on the sex–gender relation correctly, the question arises as to whether this is some contingent, coincidental outcome or whether it manifests something about their liberalism. Their recognition of some of the ways in which many women are differently embodied from all men is of a piece with the weight accorded to material conditions more generally in their liberalism. Nussbaum’s capabilities approach thinks of individuals as embodied, dependent beings rather than cerebral rational animals. All three feminist liberals are profoundly aware of the need to buttress liberal promises of equality, liberty and opportunity with the material preconditions for these goods. Consider Nussbaum’s reservations about the distinction between first- and secondgeneration rights, because “all entitlements have an economic and material basis. If you are talking about freedom of speech or freedom of religion you should not think that it is separate somehow from economic and material conditions” (2005). Part of her attraction to Marxian thinking is its attention to concrete, material realities.10 Okin’s injunction would be endorsed by her fellow feminist liberals: Liberalism’s central aim … should be to ensure that every human being has a reasonably equal chance of living a good life according to his or her unfolding views about what such a life consists in. This requires vastly more socioeconomic equality than exists in the world today … it requires that no child go without adequate food, housing, health care or education, that no person who is sick or disabled, or who is prepared to work (including child care as work), be in need, and that governments aim at full employment, high minimum wages, and whatever redistribution of wealth is required to satisfy the needs I mention. It also requires that richer countries help poorer ones. (In Cohen et al. 1999a: 119) The feminist liberalism of all three thinkers accords considerable weight to material conditions. If material conditions include bodies, then bodily needs, which might differ in some cases by sex, need to be taken into account. In Nussbaum’s estimation “The deepest and most central ideas of the liberal tradition are ideas of radical force and great theoretical and practical value” (1999f: 15; cf. 34, 44). Rosenblum repeatedly uses the term “radical” when describing Okin’s work (Chapter 3, §6). It certainly seems that the feminist liberals canvassed here send liberalism in a more radical direction than is its wont. The term “radical liberal” is mooted by Jane Mansbridge as a way of making the liberal designation acceptable to Pateman. In Mansbridge’s assessment, radical liberalism does away with (i) “the elements of a fictitious or a real social contract”; (ii) any public–private division; and (iii) any 275

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“special” relation with capitalism. Radical liberalism’s fourth characteristic is that equality carries “far more weight in the traditional formula of ‘free and equal’ beings at the base of a liberal polity” (2008: 28). Although Mansbridge concludes that Pateman does not fit the profile, her four criteria for radical liberalism are more nearly met by Okin, Hampton and Nussbaum. Regarding the first, Okin, Hampton and Nussbaum are unwilling to give up on social contract imagery altogether, but the metaphor serves primarily as a thought experiment that can serve feminist ends. Regarding the second, Okin and Hampton are unwilling to wholly abandon the public–private separation, but the rigorous scrutiny to which they subject it might satisfy Mansbridge. Her third and forth criteria are met by each of the feminist liberals studied here. The premature deaths of Jean Hampton and Susan Okin make them unable to participate in any further development of feminist liberalism. Martha Nussbaum is, however, constantly refining her position in response to challenges and informed criticism. Moreover, the focus of this book notwithstanding, Okin, Nussbaum and Hampton do not constitute a minority of three in their enduring feminist faith in liberalism. Whether influenced by Rawls or not, a number of feminist theorists are actively eliciting the promise for women in some of liberalism’s ideas as well as showing how liberalism can be made more robust by attending to women’s concerns. Baehr’s remarks thus provide both an appropriate conclusion to this work and anticipation of future directions: “What is needed now … is careful, critical engagement with the variety of feminist liberalisms … with an eye towards understanding to what extent these views capture what is most important about both feminism and liberalism” (2002: 153).

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INTRODUCTION 1. For an overview of some other feminist liberals of this time, see Botting & Carey (2004). 2. They did not, of course, label themselves feminists. Indeed, the term was not used in English in its current sense until the late nineteenth century. But as Pateman points out (1989: 15 n.1), if thinkers who manifested what we now call feminist concerns are excluded from the feminist tradition out of deference to such terminological sensitivity, it becomes easier to marginalize, and deny the longevity of, that tradition. On whether feminism can be considered a tradition of thought, see JGF (p. 61). 3. It can even be argued that they are carrying through what Locke began. For an overview of positions on the extent to which Locke defended men’s power over women in the private realm see Hirschmann & McClure (2007). Contributions by Mary Lyndon Shanley, Melissa Butler and Gordon Schochet offer a more feminist friendly reading of Locke than do those by Pateman and Teresa Brennan. Walsh (1995) also represents the former approach. 4. See Eisenstein (1981: 177–200); Hampton (1996: 16); Kensinger (1997). Friedan does not, to my knowledge, use this term to describe her position. 5. The only exception known to me is Okin (1981). 6. While this is standard procedure in mainstream political theory, the feminist thinkers studied here have not yet been subject to this sort of serious and searching treatment as systematic political thinkers. 7. This study does not, however, aspire to be a work of Rawls interpretation. Rawls’s own writings are discussed only to examine these three thinkers’ uses of them. 8. For briefer accounts of the rapprochement between feminism and liberalism, see Dailey (1993) and Ward (1999). 9. The feminist liberal arguments advanced by Drucilla Cornell, Linda McClain and Elizabeth Brake are also indebted to Rawls. However, like the three thinkers focused on in this book, they take the Rawlsian legacy in different directions from one another. 10. Nussbaum (1999f: 13–14) claims that this applies globally. 11. Cf. Kiss (1997: 7) on feminist critiques of rights. 12. MacKinnon insists, however, that radical feminism is the tautological term and should be thought of as feminism unmodified. This is the only strand of feminism that does not apply a pre-existing or adventitious doctrine to the analysis of women’s condition (1989: 117).

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13. For a penetrating discussion of these categories and their limitations, see Kensinger (1997); cf. Pateman (2007: 219). 14. Consider Hirschmann’s more general point that “liberalism, formulated as a discourse to privilege a certain group of people, namely propertied white males, can be saved from itself by the very people it has historically excluded” (1999: 50). 15. Hirschmann suggests that all liberalism should be modified as patriarchal, white, welfare, feminist, black, and so on (1999: 37). Mills contrasts racial with non-racial liberalism (2007c: 231).

1. THE FEMINIST CRITIQUE OF LIBERALISM 1. See Nussbaum (1999f: 14); Schwartzman (2006: 61); Baehr (2004: 17 n.3), where Jaggar’s work is the earliest of the feminist critiques of liberalism listed. 2. MacKinnon (1989: 260–61 n.1) cites Jaggar and Eisenstein once in the same context. Pateman (1988: 201) cites Jaggar (but not her 1983 book). In 1982 Pateman published a review of Eisenstein’s book and cites her occasionally thereafter (Pateman 1988: 22, 38; 1989: 36, 119). 3. Eisenstein, Jaggar and Pateman cite her work, albeit in brief references. MacKinnon (1989) includes six references to Beauvoir, and MacKinnon continues to cite her (2010: 505). 4. Because this chapter focuses on the criticisms of liberalism from the perspective of gender, critiques mounted by socialist or Marxist feminists do not play a central role. Nor do I discuss Butler and other so-called postmodern critics because many of their criticisms of Western thought have a much bigger target than simply liberalism. Unlike the feminist critics canvassed in this chapter, Butler has not, to my knowledge, said much that is specifically directed at liberal political theory and next to nothing about Rawls. Her brief discussion of “the liberal model” (1990: 15) does not apply to the liberals discussed here. An obvious exception to this trend appears in Wendy Brown’s critique of liberalism, but Schwartzman (2006: pt iii, chs 6, 7) has engaged effectively with this. 5. For a differently organized, but I hope not incompatible, map of this terrain, see Nussbaum (1999f ). 6. Pateman’s readings have not gone undisputed by other feminist readers of the canon. See Okin (1990b); Hirschmann (1992); Slomp (1994); Boucher (2003). 7. For Minow and Shanley, family forms are “clearly affected by law” without being entirely its artifact (1996: 22). 8. On the legal, economic and other benefits accruing to married individuals, see Fineman (2006: 37–8); Pateman (2007: 222–3). On the diversification of family forms, see Fineman (2006: 42–3); Castells (2004); Daly (2005). There is a lively debate among feminist theorists about what public policy on marriage and the family in a liberal society should be. See Shanley (2004); Bernstein (2006); Metz (2010). 9 . On Wollstonecraft, see Abbey (1999); Botting (2006). On Mill, see Abbey (1997). I cite myself here as illustrative rather than unique and because my article cites other discussions of this idea in Mill. 10. Sibyl A. Schwarzenbach (2009: 18–21) offers another reason for rejecting any strong normative public–private separation, contending that any viable conception of civic friendship must draw, in the first instance, from personal relationships of love, care, trust, respect and reciprocity. Drawing from this ethical well will also reduce the gender bias built into political thinking until now. 11. Carver (2004) offers a fascinating response to feminist readings of the canon,

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12. 13.

14.

15.

16.

17. 18. 19. 20.

21.

recommending careful scrutiny of what the term “man” really stands for in these texts. Eisenstein’s book is referred to once by MacKinnon (1989: 261 n.1). The title of MacKinnon (1989) reproduces a subtitle in Eisenstein’s final chapter (1981: 225). Schwartzman’s feminist critique of liberalism is of particular relevance because it engages recent versions of liberalism by John Rawls and Ronald Dworkin. Eisenstein (1981) makes no reference to Rawls. MacKinnon includes two references in footnotes (1989: 292, 315) but her 2006 work contains none. Nussbaum (2007a) discusses the implications of MacKinnon discussing liberalism without Rawls. On Pateman’s relationship to Rawls, see Chapter 12, §6. Gilligan’s work has also been criticized by a number of feminists for several reasons: her association of the ethic of care with gender rather than subordinate social location; the possible glorification of women’s subordinate social status; the risk of essentializing gender; and its apparent endorsement of a binary opposition between care and justice. For an overview of the debate, see Squires (1999: 141–65). Many feminists follow Gilligan in accepting Nancy Chodorow’s object relations theory, which aims to explain how boys and girls develop differently on the basis of differential attachment to their primary care-giver. As most children are currently raised by women, boys have to separate, differentiate and individuate themselves from their primary carer to achieve masculinity whereas girls can realize their gender identity through association, connection and continuity with female carers (Chodorow 1978). McClain (1991–92: 1173–4) discusses but does not endorse this view of the liberal individual as an atomized, competitive, masculine being who prioritizes rights over responsibilities. Paid and volunteer work in animal shelters could be added to this list of caring labours performed predominantly by women. Brennan (1999: 865–7) discusses this trend within feminist ethics more generally. MacKinnon is referring to a law she drafted with Andrea Dworkin. Cf. Yuracko (1995: 23–4). As this indicates, she does concede that some men are also the victims of rape and other forms of abuse and denigration but they are subordinated (and feminized) in this process (cf. 1989: 160, 228, 275 n.45). “Draconian” is used in the colloquial sense of severe while keeping in mind that Draco’s name could mean sharp sighted. Schaeffer (2001) elucidates a number of ways in which liberal values both inform MacKinnon’s critique of women’s condition and inhabit her vision for its improvement. Schaeffer’s subtle attempts at identifying liberal elements of MacKinnon’s thought are, however, rejected by MacKinnon (2001). Others who have attended to the liberal elements of MacKinnon’s feminism include Zuckert (2002: 274) and Nussbaum (1999f: 43; 2007a).

2. INJUSTICES, GENDER, FAMILIES 1. WWPT’s reception was positive, with the exception of Nichols (1981). The general consensus was that Part V was less powerful than the historical chapters: see Annas (1980: 564); Shanley (1980: 547); Boulding (1981: 202); Evans (1982: 120); Kerber (1982: 433). Among Okin’s discussions of canonical thinkers, Annas (1980) and Shanley (1980: 547–8) deemed that of Aristotle to be the least subtle. Annas (1980: 566) and Scheman (1982: 470) note that Nicomachean Ethics is misspelt throughout. 2. See Okin (1985, 1990b) for reviews of Pitkin’s and Pateman’s books, respectively. 3. Okin does draw on some of the early work of these figures, however. Chapter 9 thanks

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4. 5. 6.

7.

8.

9.

10.

11. 12.

13. 14.

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Shanley, Pateman and Brennan (1980: 329 n.1). Pateman’s early co-authored piece, which she depicts as the start of her book on The Sexual Contract, was known to Okin, as was Shanley’s work on the marriage contract. WWPT’s bibliography includes works by Annas on feminism and Plato’s Republic; two other articles about Plato on women; a work by Elshtain on women and morality in Aristotle; two articles about Rousseau and feminism; a work on women in Locke; and an article by Schochet on Hobbes and the family. So Okin was not operating in a total vacuum in conducting her feminist re-reading of canonical texts. For the argument that this insight originates in the modern era with Wollstonecraft, see Abbey (1999). Rosenblum (2009: 36) attributes this to her anti-utopianism. Both of Okin’s books are dedicated to her husband and child (and then children), suggesting that she personally values family life. David Tubbs misses the positive value Okin lends to family life, claiming that she attributes its enduring popularity to “the ideology of patriarchy” and the lack of women’s equal employment opportunities (2007: 57; cf. 73). This incongruence between her depiction of shared parental responsibility and women’s free choice to parent is one of the few aspects of Tubbs’s reading I endorse (Tubbs 2007: 75–6). But he exaggerates Okin’s enthusiasm for single-parent families, ignoring her claim that most result “from marital separation and divorce” (JGF: 179). She links the situation of never-married parents primarily to teenage pregnancy and is concerned to reduce, rather than celebrate, this form of single parenting (JGF: 178). Given his professed concern with children’s welfare, Tubbs inexplicably ignores Okin’s attempts to make men better, more involved parents. Okin acknowledges this (JGF: vii, 209 n.6). Reviews by Thorne (1990: 672), Tronto (1990: 1360), Landes (1991: 205) and Lind (1993: 209) also note the link between the two books. She later adds Ronald Dworkin, Brian Barry and Steven Lukes to the roster of contemporary theorists of justice who have “paid no attention … to the feminist movement and its ideas” (2004: 1539). This cannot eliminate a full-time domestic worker’s dependence on the other person’s earned income, for the paid worker could decide unilaterally to quit their job, or take a lower paying one, which would have a direct impact on the domestic worker’s income. For a critique of the pay cheque proposal, see Schwarzenbach (2009: 207–8), who correctly points out that some women will split pay cheques with well-paid men, some with poorly paid men and some will not split them at all. This proposal reduplicates “injustices of class, race and heterosexual orientation” (ibid.: 208). But writing as if this is Okin’s only proposal for promoting gender justice prevents Schwarzenbach from acknowledging how much her own support for equalizing men’s involvement in childcare, providing greater workplace flexibility and having private, caring concerns more fully acknowledged in the public realm (ibid.: 167) dovetails with Okin’s wider position. A later writing confirms that total household income is to be shared equally but does not specify a mechanism (Okin & Reich 1999: 290). As Nussbaum says, “What American rhetoric means by ‘the family’ is, typically, a heterosexual couple (paradigmatically, at least in the recent past, a working father and housewife mother) rearing its children in relative privacy and dwelling in its own home” (2000b: 258). Chapter 3, §6, discusses what Okin means by gender’s disappearance. Okin offers this justification in a later response to the criticism but regrets any lack of care in specifying what sort family she was referring to in any particular instance (1996: 31, 46 n.2).

NOTES

15. Rapport (1991: 852), Binion (1991: 454–6) and Cohen (1992: 283–4) fear that Okin pays too little attention to gender-based workplace discrimination. Restructuring the family will not necessarily solve the problem of a sex-segregated workforce in which women are paid less than men. Okin pays some attention to women’s lower pay (JGF: 141, 145), and later acknowledges the problem this poses in particular for families where a woman is the income earner (1994b: 15). She could explain such discrimination by reference to the masculine image of the worker, but she does not offer any policy proposals to address this deeply entrenched problem. 16. Sometimes Okin poses this as a rhetorical question (JGF: 100; 1992b: 65; 2004: 1558, 1566–7). 17. Okin seems to have taken on board the criticism of JGF for conflating a particular model of the family with the family as such, for she specifies that she is talking only about the two-parent, heterosexual family form (Okin & Reich 1999: 290, 296). 18. Chapter 4, §1, “Home schooling”, proposes that greater fidelity to Rawls’s view on moral development in TJ could avoid this problem. 19. Okin indicates that she has bell hooks and Elizabeth Spelman in mind (JGF: 187 n.9). Although they were writing before Kimberle Crenshaw coined the term “intersectionality”, I include their writings under this label given their common concern to reflect on the significance of differences among women for feminist theorizing. 20. Okin also points out that one of the studies she draws on includes no women of colour, although it does draw interviewees from a range of class backgrounds (JGF: 143 n.). 21. Spelman’s brief discussion of WWPT, which she describes as “very important”, points to Okin’s tendency to write about slaves and women as if they were discrete categories (1988: 48). 22. Rejecting this charge, Okin points to JGF’s recognition of diversity among women (1995b: 277). 23. This recalls one of Spelman’s complaints about how feminist theory done by white middle-class women makes false generalizations about the family as a source of women’s oppression (1988: 132). 24. In an article published in the same year as JGF, Patricia Hill Collins observes that “While there are significant differences between the roles Black women play in their families and those played by middle class white women, Black women are clearly affected by general cultural norms prescribing certain familial roles for women” (1989: 765). 25. In a later writing, Okin reports that Chodorow’s work on the reproduction of mothering has been found relevant to Chicana families (Okin 1997: 20). 26. Chapter 3, §6 discusses Okin’s views on this connection. Since JGF was published, same-sex marriage has become legal in Belgium, the Netherlands, Norway, Sweden and Spain, while domestic partnerships are recognized in a host of European countries (Cole 2009: 12). For a fascinating discussion of same-sex marriage in practice, see Badgett (2009). 27. Cf. Young’s claim that all women in Western societies are affected by the processes Okin outlines (2009: 225). She later says that Okin argued that most women are affected (ibid.: 226). Young does not explain her later implication that some women escape or remain untouched by these influences.

3. DEFINING OKIN’S LIBERALISM 1. Rosenblum (2009) claims that Mill remains the seminal influence on Okin. 2. Cf. Cohen’s observation that Okin could have honed her position more carefully

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3. 4. 5. 6. 7.

8.

9. 10. 11. 12. 13. 14.

15. 16.

17.

18.

282

by comparing closer alternatives (1992: 271–2). More generally, Elizabeth Wingrove detects in Okin a “disinterest in matters of method” (2009: 62); cf. Cohen (2009: 43). Jaggar (2009) sees Okin becoming more methodologically self-conscious over time. Russell (1995) advances Hobhouse as a liberal who continues Mill’s concern with gender justice but who is overlooked by Okin. For a recent and more detailed discussion of Mill’s treatment of these issues, see Hirschmann (2008). Not all liberals cleave to this latter Millian ideal. See might have been particularly attuned to these issues because she reviewed Eisenstein’s book together with Okin’s. Okin (1989c: 40–41) goes beyond the need for (progressive) redistribution to consider the conditions of wealth creation but this foray into political economy is not only brief but rare in her work. As Chapter 6 indicates, she does engage economic issues in her later writings on development and Third World poverty. Okin’s failure to say much about relations of production could explain why Schwarzenbach reads her as largely accepting the present market system (2009: 207–8). But it is inaccurate to suggest that she is content with market mechanisms for wealth distribution. As Phillips points out, JGF “does not explore the possibilities of providing child support through the state rather than the individual” (1992: 124). This can be explained, in part, by Okin’s thinking being so heavily geared towards conditions in the US. Cohen regrets her failure to draw cross-national comparisons because some of her proposals have been implemented in other countries and because Okin takes her work to have implications for Western countries beyond the US (1992: 262 n.1, 267). Rosenblum sees Okin as having “committed her professional life to redeeming liberalism from its own failings” (2009: 15). Cf. “Okin did not accept the challenge of grounding her humanist liberalism” (ibid.: 38). Butler (1996: 48) articulates a similar approach to social criticism. A number of the pros and cons of Walzer’s theory of justice for feminism are rehearsed in Okin (1995c). More confidence about the wide-ranging critical potential of social meanings is expressed in Walzer (1987: 46, 64; but see 64–5 n.19). Okin envisages salutary consequences from women’s increased participation in politics, for those experienced in nurturing life are less likely to “risk lives in unnecessary wars” and more likely to spend on education, housing and health care than “ever more sophisticated weaponry” (ibid.: 70). But this conflates being a woman with being a mother or child carer, as Okin seems to recognize when she specifies later that having women in high political office is not enough: they must be women with childcare experience (1995c: 128). Phillips (2001: 260) complains that liberalism pays insufficient attention to equality of outcomes (end-state equalities), which should be a cause of concern for feminists. They are also hard to reconcile with Rosenblum’s claim that Okin’s central concern was not equality but individual liberty (2009: 26). I think that here Rosenblum mutes the real tensions within Okin’s liberalism. For insightful discussions of these, see Cohen (1992: 264–5; 2009: 53–4). Okin & Reich (1999: 285, 289, 294) argue that the gender-egalitarian family should not be compelled but that public policy should promote the equal division of domestic labour. Richard Arneson (1997) also observes that Okin does not want the equal division of domestic labour to be enforced by the state, but finds her rationale unclear. It could be fear that this would be counterproductive or respect for individual liberty. Okin’s

NOTES

19. 20. 21. 22.

23.

24.

25. 26. 27. 28. 29.

30. 31.

32.

33.

34.

position is probably motivated by both, but respect for individual liberty is a big factor, as Rosenblum (2009) recognizes. Arneson goes on to make the point made here: that there is nothing inherently illiberal in circumscribing individual liberty in the pursuit of justice. Unsurprisingly, some readers discern in Okin a faith that all good things can be realized frictionlessly together. See Elshtain (1992: 47). See Olsen (1985) for an influential formulation of these ideas. Okin applauds Pateman’s work on the public–private separation, thereby endorsing some aspects of the feminist critique of liberalism (cf. JGF: 23–4, 109). This formulation ignores the fact that physical and/or mental impairments might render some family members unequal in certain key respects their whole life. Their need for protection from abuse is, correspondingly, continuous. Linda McClain is another feminist liberal who defends the ongoing relevance of privacy for women. For her endorsement of most of Allen’s claims, see McClain (1999). See also Metz (2010) on the need to interrogate but not jettison the public–private distinction. Would it mean, for example, opposing abortion notification laws, whereby doctors are legally required to notify parents or guardians of a minor’s intention to have an abortion? Shanley (2009: 114, 127 and passim.) also reads Okin’s views about the end of gender in this light. The Conclusion, §1 discusses challenges from Butler and others to the traditional approach. Shanley (2009: 113, 116, 125) imputes the traditional feminist view to Okin. Not all of Okin’s readers have been critical of this idea. See Mills (2007a: 101). Cf. “Okin did not insist that all gendered attributes or roles should be eliminated … gendered roles and attributes assumed by individuals should not be the result of submission to coercive norms or institutionalized restrictions … Gender-free means, modestly, that individuals are not born to nor bound by those roles, and that law and public policy do not support them by regulations or incentives” (Rosenblum 2009: 33). Satz and Reich entitle their volume of essays about Okin Toward a Humanist Justice, which is the title of JGF’s concluding chapter. Rosenblum interprets Okin differently, holding that “equality was not her chief concern” (2009: 22) and “‘Equal sharing’ is best understood as shorthand or as a slogan for challenging the entrenched inequalities that amount to subjection” (ibid.: 26). There might be room for some reconciliation between our interpretations given my conclusion that equal outcomes is probably only a transition stage for Okin, but it is a pretty important stage of indefinite duration! Okin quotes from part of Marx’s Economic and Political Manuscripts of 1844, which says that the relationship between men and women is a gauge of humanity’s “whole level of development” (WWPT: 8). Shanley’s review of WWPT (1980: 550) also discerns Marx’s influence. She notes, as do a number of reviewers, Okin’s indication that the successor study would be of gender in the socialist tradition. See Annas (1980: 565); Boulding (1981: 202); Tronto (1981: 597); Evans (1992: 120). This never materialized, with Okin moving on to contemporary theories of justice instead. Although his penetrating analysis of “The Place of Negative Morality in Political Theory” does not discuss Okin, Johnathan Allen (2001) imputes to proponents of negative morality a number of the characteristics Rosenblum discerns in Okin. These include avoiding or minimizing injustice, suspicion of system-building and grand theory, anti-utopianism and a strong interest in theory’s relation to practice.

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4. HE SAID, SHE SAID: THE RAWLS–OKIN DEBATE 1. Okin’s proposals are outlined in Chapter 2, §3. In light of this, Bojer’s (2000: 30) conclusion that Okin identifies but “does not go on to develop” the feminist possibilities in Rawls’s thought is puzzling. 2. Russell (1995) suggests a neo-Aristotelian view as more suited to her purposes. Baehr (1996) also argues, independently of Russell, that Okin’s Rawlsian framework cannot do the work she needs it to. 3. Remarks in later writings support my claim that the veil of ignorance does not require genderless thinking but only ignorance of what one’s gender will be (Okin 1994b: 19– 20; 2004: 1553), although, given the timing, Russell and Rapport could not have had access to these passages. 4. It is possible to read Amy – a paradigmatic figure in Gilligan’s ethic of care – as doing just this. McClain (1991–92: 1206–7) endorses Okin’s interpretation of Rawls. 5. Elshtain’s (1992: 67) claim that JGF ignores the significance of the ethic of care debate in its feminist thinking about justice is, therefore, not wholly correct. 6. In a co-authored article published ten years after JGF, Okin makes some of these points, although she does not present them as a departure from, or elaboration of, her position in JGF. She argues that schools can play an important role in fostering children’s capacity for empathy and that in some cases this can be a valuable corrective to the family. Schools can make children aware of different family forms and expose them to the moral and cultural pluralism that might be absent from the family (Okin & Reich 1999: 284, 291–6). 7. Okin was not the first to engage Rawls’s work from a feminist perspective; see also English (1977); Kearns (1983); Green (1986). As noted above, Okin endorses English’s point that Rawls renders the family opaque to questions of justice. She commends Kearns for drawing attention to the way his theory of moral development fails to consider justice within the family (JGF: 196 n.20). She suggests that in Kearns’s view, Rawls failed to interrogate the family because he thought it was not just, whereas Okin attributes this failure to his belief that it was (2004: 1548–51; 2005a: 237–8). 8. On Rawls’s failure to engage with the feminist responses to his work, see (Hirshman 1994: 1860; Exdell 1994; Frazer & Lacey 1995: 234–5; Wijze 2000: 259). One exception is his acknowledgement of English’s work (1977). Yet in each of the three cases where Rawls mentions her, the focus is the just savings principle and duties to future generations rather than the opacity of justice in the family (Rawls 1993: xlviii n.20, 20 n.22, 274 n.12). 9. Okin later reports that she learned in conversation with Rawls that he did see this carrying over (2004: 1559 n.78) but, as we shall see below, while this answers some questions, it poses others. 10. Okin reports that in heterosexual households where the woman engages in paid work and unpaid domestic work but carries out more of the latter than the does the man, female children do more of the housework than male children (1994a: 36). Children of both sexes learn what she calls the “drudge-wife” model of domestic labour. 11. The working title of the manuscript was “Women and the Family” (Okin 2004: 1554). 12. Erin Kelly, editor of JFR, says that this section was added in the early 1990s (Rawls 2001: xii). My exposition draws from both sources and notes any potentially significant variations between them. 13. Rawls routinely uses the formulation “women and their children”, which implies that children belong to women, making it harder to argue that women should not play

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14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24.

25. 26.

a greater role in their care than men do. The status of children in justice as fairness deserves its own careful study. Some consideration has been given to this by (Bojer 2000; Brennan & Noggle 2000). I argue (Abbey 2007) that Rawls effectively applies the first principle of justice directly to family relations. But nothing here hinges on the correctness of that interpretation. As Clare Chambers reminded me. JFR reads “fair opportunities” here (p. 164). JFR reads “and fair opportunities” here (ibid.). JFR reads “claims” instead of “basic rights” here, so the language grows more forceful in the later articulation (p. 164). JFR adds “already” here (p. 166). JFR adds “fair” here (ibid.). JFR reads “a disproportionate” here (p. 166), the language once again having grown more forceful in IPRR. Okin acknowledges this (2004: 1554). See Brake (2004: 308) and Cornell (2005: 21, 41, 43) for arguments that in the interests of normative consistency, liberalism should not privilege heterosexual marriage. For example, the California Marriage Protection Act, or Proposition 8, which bans same-sex marriage, was passed in California in November 2008, largely owing to a concerted effort across religious groups, ranging from Catholics to Mormons. For a different assessment, see Smith (2004). As discussed earlier in this chapter, that would seem to be a negotiable aspect of a feminist version of justice as fairness whereas concern with the justice of the family would not.

5. WHEN LIBERAL MEANINGS ARE NOT SHARED 1. I cite the 1999 version of this essay in Cohen et al. (1999a); it was originally published in the Boston Review (October/November 1997), at www.bostonreview.net/BR22.5/ okin.html. Only occasional minor differences in wording separate the two. Because Okin (1998b) covers much of the same ground, I draw on it when appropriate for elucidating her meaning. 2. Kymlicka dubs this the “liberal culturalist” position (2002: 339), portraying it as “the consensus position among liberals working in this field” (ibid.: 340). Spinner-Halev labels it “group autonomy” (2001: 84). Ayelet Shachar calls it strong multiculturalism while Sarah Song calls it “weak multiculturalism” (2007: 22). As this signals, multiculturalism is a contested term and Okin’s fairly loose use of it has generated some confusion among her interpreters. 3. Kymlicka’s first articulation of his position elicited Okin’s enthusiastic commendation: he provides “a very powerful liberal argument for the protection of the collective rights of minority cultures” (Okin 1991b: 123; cf. 127). 4. Deveaux sees this as changing, however, as part of a larger mood change in normative political theory (2006: 1, 3; cf. Phillips 2007: 12). Barbara Arneil et al. credit Okin with sparking the debate about “cultural disagreements over women’s status, roles and arrangements in liberal democratic states” (2007: 1). Even commentators critical of Okin’s position refer to her “path-breaking contribution” to this debate (Shachar 2009: 144; cf. 146; Jaggar 2009: 168). Before Okin, Hilary Charlesworth had raised the issue of women’s oppression being ignored in claims for third-generation human rights, which include group rights. But thinking primarily of the international system, Charlesworth (1994: 75–6) seems to associate a group’s right to self-determination

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5. 6.

7. 8.

9.

10.

11.

12.

13.

14.

15.

16.

286

with the quest for statehood rather than special rights within a liberal democratic society (cited in Okin & Ackerly 1999: 147; Okin 2005c: 89). Kymlicka accepts this point (1999: 32). Curiously though, Okin later nominates him as “insufficiently attentive to private sphere discrimination” (2002: 208). Elsewhere Okin cites Hanna Papanek as showing that “‘well socialized’ women in cultures with such practices [foot binding, clitoridectomy, purdah] internalize them as necessary to successful female development” (1994b: 19). Here she is effectively echoing Walzer that youth makes “for critical distance” (1987: 60–61). Phillips (2007: 26) attributes this point to Okin, and later depicts the feminist critique of multiculturalism as starting with the insight that self-styled leaders might fail to represent the interests of the whole group. Revisiting her contribution to the group-rights debate, Okin continues to maintain “that liberalism, despite its many failings, usually respects women’s (at least, formal) equality more than do most minority cultures that currently seek group rights within liberal societies” (2005b: 75 n.4). It could be inferred that there were twelve replies (Okin 2002: 207 n.2). However, twelve replies accompanied the article’s original appearance. When republished in 1999, reactions by Al-Hibri, An-Na’im, Sunstein and Nussbaum were added. One of the original responses, “Publicity and Public Life” by Elizabeth Frazer, was not republished. Raz advances a different view: “Okin’s concerns have little to do with group rights. They focus … on the harm some cultures inflict … on women” (1999: 96). I read Okin as focusing on these harms as a way of cautioning against group rights. This is clear in the last lines of her original essay, quoted above. In another version of the argument Okin states at the outset that “The context of the multiculturalism I am concerned with is the wider social, economic, and political context, though still within the nation-state” (1998b: 661; cf. 2005b: 68, 70 n.2, 75 n.4). Arneil et al. see her as offering “a cautious affirmative answer” (2007: 1). See Okin (2005b: 71) on other responses that have misread her as offering an affirmative answer to the title’s question. Frank Lovett even refers to “the feminist backlash against multiculturalism – posed most forcefully and famously by Susan Moller Okin” (2008: 166; cf. Shachar 2009: 149). This definition casts its net more widely than Okin does, embracing those in foreign cultures. Despite affirming this definition of multiculturalism, the editors go on to specify that Okin’s actual question is “how can we endorse special rights for groups that treat female members as subordinate no-counts” (Cohen et al. 1999b: 4). This suggests again that Okin’s work has been mistitled. Okin (1998b: 661–3) includes a fuller reflection on the various meanings of multiculturalism. For her retrospective admission of problems with the title, see Okin (2005b: 72). Okin refers to “immigrants to Europe and Northern America” (1999a: 17); in a related writing she specifies the US, Canada and Europe (1998b: 682). Frazer is correct that associating Western cultures with liberalism is a loose generalization: other ideologies such as conservatism and social democracy form part of the political cultures of Western societies and do so in ways that vary from one society to the next. Okin evinces awareness that Western societies have differed among themselves in responding to claims from minority cultures (1999a: 9). But the societies she has in mind are all liberal democracies and her seminal point is that the presence of liberal values in them can be, and has been, invoked by feminists against patriarchal attitudes and practices.

NOTES

17. Cf. Narayan (2002: 423), although she ignores the fact that Okin is not in this context talking about “Third-World women” in general, but only about those who have migrated to Western societies where the ambient culture makes different expectations for women’s equality and liberty available. 18. Okin (2002: 207–8) rejects the charge that she is forcing a choice between culture and gender. 19. Okin (2005b: 70 n.2) recounts some other reactions to this passage. As she emphasizes there, “the wording surrounding the phrase was highly qualified”. 20. Okin (2005b: 69 n.1) claims that Benhabib misrepresents her views on culture, and elaborates on the idea of culture as contested (ibid.: 74). Shachar contrasts Okin’s approach unfavourably with that of postcolonial feminism, which rejects “simplistic and uncritical understandings of culture” (Shachar 2009: 149). She cites Uma Narayan on group leaders being unrepresentative and excluding many community members’ voices, while completely ignoring the fact that Okin made this very point in MBW (ibid.). 21. Shachar is thus misinformed when she claims that Okin: sees religious traditions as incapable of reform in more gender-equal directions; fails to recognize religious women as agents in the reinterpretation process; and ignores the central role that faith plays in some women’s lives (Shachar 2009: 149, 152–3). Song (2006: 31, 36) also ignores Okin’s comments on female re-interpreters of religious traditions. 22. Again, parallels can be drawn with Walzer’s view (1987: 64–5 n.19). 23. An early statement of the exit option is provided in On Liberty’s discussion of Mormonism (Mill 1997: 113). 24. I cite this passage as illustrative of the wider position Okin is questioning, not because Spinner-Halev is one of the exit option thinkers she engages here. She did, however, know this article and cites another part of it (2002: 222 n.46). 25. Okin does acknowledge and commend Shachar’s work on this problem though (Okin 2002: 208–9; cf. 2005b: 71). 26. Spinner-Halev also points this out in a different section of his article (2001: 92). 27. See Hirschmann on internal barriers to freedom (2003: 112–13). 28. Deveaux finds Okin’s depiction of the barriers to exit persuasive but her recommendations for state intervention “too invasive and intolerant” (2006: 52). The prescriptive part of Okin’s analysis is brief, comprising specific and general proposals. Specifically, groups who discriminate against or oppress women should not be granted group rights nor tax-exempt status. Generally, the state should enforce individual rights “when the opportunity arises” and “encourage all groups within its borders to cease such practices” (Okin 2002: 229-30). 29. For a helpful discussion of the exit issue, see Phillips (2007: 133–57). Song criticizes Okin for failing to distinguish between small, closed groups where exit might be more difficult and larger, more integrated groups where it is more viable (2006: 31). But when Okin is read, as suggested in this chapter, as issuing a caution, as encouraging liberal defenders of group rights to take gender seriously, she would have to concede Song’s point that her caution is unnecessary for groups that women can leave on the same terms as men. 30. It is interesting to consider Hill Collins’s claim about the convergence of Afrocentric and feminist values in the ethic of care. Recognizing that Gilligan’s work is “limited by its attention to middle-class white women” (1989: 769), she finds this ethic to be even more relevant to black women for whom it is manifested not just in the family but also in black churches (ibid.: 768). 31. On domestic violence, see Crenshaw (1991); on rape see Harris (1990). 32. Anne Dailey also points to the important role narrative plays “in the reconstruction

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33.

34.

35.

36.

37.

of the category Woman [sic]. The anti-essentialist critique is propelled by the stories women tell about their differing life experiences. Stories by and about women of color or lesbians, for example, document the multiplicity of female experience in a way inaccessible to abstract theory” (1993: 1276). While I agree with Dailey’s larger point, I disagree on two smaller ones. I cannot see any room for reconstructing the singular category “woman” with its essentialist overtones as opposed to a reconstructed understanding of the category of “women” with its inbuilt plurality. Second, because some women of colour are lesbians, to present them as alternative identities is misleading. The following evidence about the role of self-interpretation in the intersectionality literature is drawn from writings Okin knew (Okin & Mansbridge 1994a,b). Neither the Crenshaw nor the Collins article is included in volume two, part one, “The Search for Self and the Debate about Differences Among Women”. Crenshaw appears in part two of that volume, about feminism and equality law, while Collins is in the first volume’s part two about domination and subordination. Later in this work, Hill Collins concedes that this is complicated by class – black women of different social classes do not experience identical oppression. See Lorde (1984: 121–2) on issues of sexual orientation that are not addressed by Hill Collins here but are taken up in Hill Collins (2000). See for example MacKinnon (1989: 83). Hill Collins also suggests that black feminist thought can manifest itself in a diversity of genres: blues music, poetry, autobiography, storytelling (1989: 770). This point about multiple modes could be extended to the wider tradition of feminist thought too. To say that self-interpretations matter is not to say that they are all that matters. As Phillips points out, individuals who do not identify with a particular race, class, gender or ethnicity can still be discriminated against by others on these grounds (2007: 15). As we saw (Chapter 2, §5), Spelman criticized Okin for this in WWPT.

6. GOING GLOBAL 1. This is not a problem for those who attribute a universalist liberalism to Okin (Satz & Reich 2009b: 9; Keohane 2009: 207 n.14). 2. The traditional belief that the domestic realm was beyond the purview of politics led policy-makers to focus development efforts on the paid workforce (Okin 1994b: 10– 11). In one of the rare moments in MBW where Okin looks beyond group rights to global issues, it is to point out how much the situation of women bears on economic development in poor countries (Okin 1999b: 120). 3. Young (2009: 230), by contrast, implies that Okin overlooks this difference. In a chapter she describes as an extended version of the article “Gender Inequality and Cultural Differences” (1994b), Okin notes that another difference between women in poorer and wealthier countries is that it is harder for the former to live as lesbians if they wish to. They tend to be married early and engaged in childbearing and childrearing, to say nothing of the fact that it is harder for women to attain economic independence from men. This makes marriage an even more influential institution in their lives (1995b: 275 n.2). 4. This debate pays “attention to the actual, ongoing relations of domination among women in the United States and elsewhere” (Flax 1995: 503), yet the offhand addition of “elsewhere” is hard to reconcile with Flax’s insistence on the debate’s particularity. 5. For Okin’s complaint that Flax is not engaging her stated position, see Okin (1995a: 511). Looking back at this “exchange”, Wingrove sees Okin and Flax “speaking past each other” (2009: 63).

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6. For a vindication of this aspect of Okin’s argument, see Young (2009). She does not, however, refer to Flax’s critique. 7. There is an error in one Flax’s citations: note 7 cites the title of the work’s introduction “Cartographies of Struggle: Third World Women and the Politics of Feminism”, but its page references are to the collection’s next essay, which is cited here. 8. It is hard to reconcile Flax’s faith in conversation with her declaration that “Discourses of difference cannot be understood outside their specific historical contexts and purposes” (1995: 500–501). 9. Compare her later claim that women’s rights are more likely to be violated by those close to them – fathers, brothers, husbands – than by the state (2005c: 86–7). 10. When reviewing Ackerly’s book, Okin’s failure to acknowledge that they had been co-authors is surprising. 11. There are echoes here of Walzer’s depiction of “the local judge, the connected critic … Perhaps he has traveled and studied abroad, but his appeal is to local or localized principles; if he has picked up new ideas on his travels, he tries to connect them to the local culture … he is not intellectually detached” (1987: 39). 12. Okin’s image of women who are both inside and outside subverts any picture of cultures as hermetically sealed and independent (Okin 1995a: 515–16 n.2; 2003: 300). See especially Okin (1998c: 47) on the internal heterogeneity of cultures and the difficulty this creates for saying who is an insider and who an outsider. 13. Jaggar (2009: 178) also observes that Okin became more attentive to women’s voices over time but expresses reservations about the ways in which she does this. 14. This is not the only influence, for she was also engaging feminist and other responses to MBW. This is clear throughout Okin (2005b), but see especially (ibid.: 85 n.8). 15. Although placing Okin in the liberal, juridical camp, Deveaux (2006: 30) acknowledges the democratic, consultative dimensions to her position. Describing feminists who follow a more deliberative approach, Shachar says that they “take as their starting point the need to acknowledge intragroup inequalities rather than trust in the representation and dialogue conducted through groups’ official spokesmen” (2009: 157). However, because she fails to credit Okin with this point (see Chapter 5), Shachar once again exaggerates the distance between Okin and other feminist thinkers about multiculturalism. See Okin’s (2005b: 71, 73, 75) complaint that Shachar misrepresented her position, and in doing so diminished the agreement between them. 16. From the Radcliffe Institute website where she was a fellow in the 2003–4 academic year: www.radcliffe.edu/fellowships/fellows_2004sokin.aspx (accessed February 2011).

7. CONTRACTING FOR FEMINISM 1. Her single-author books are Hobbes and the Social Contract Tradition (1986) and Political Philosophy (1997). The Authority of Reason (1998) was edited posthumously by her husband, Richard Healey. Forgiveness and Mercy (1988) is co-authored only in the sense of interleaving a series of chapters by Hampton with a series by Jeffrey Murphy. 2. Hampton’s feminism and her view of punishment dovetail in Hampton (1998). Other points of intersection are touched on by Kamm (1998: 239) and Richardson (2007a). As the title of Farnham’s collection of Hampton’s essays suggests, these parts of her corpus seem to be united by her fundamental belief in the intrinsic worth of persons. 3. First published in 1992 in the first edition of A Mind of One’s Own (see Antony & Witt 2002). I cite the version from Farnham (2007).

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4. Hampton erroneously says that the passage she cites appears on page 111. 5. For critiques of Hampton’s exclusion of affective ties from the evaluation of the relationship, see Sample (2002: 269–72); Radzik (2005: 49–51). 6. One way of retaining her claim that distributive justice inheres in morally healthy and respectable relationships while conceding that some relationships should not be evaluated according to their justice is to affix a very limited meaning to morality, and to say that while relationships based on inequality are not moral, they might be ethical. But Hampton nowhere draws or even approaches a distinction between morality and ethics in FC. Hampton (2007b) trawls through a number of conceptions of morality without drawing this distinction. 7. Radzik (2005: 54 n.19) acknowledges Hampton’s point that radically unequal caring relationships are not to be measured according to the justice scale yet concludes that “In the absence of justice, no caring relationship can be healthy” (ibid.: 53). I doubt that Radzik means that profoundly asymmetrical caring relationships must be unhealthy; like Hampton, she seems to be issuing a careless generalization here. 8. Basing gender difference in biology is seen by Hampton as the social variant of the natural subordination thesis (1996: 8–13). 9. Radzik suggests that exploitation can come about when the exploiting party is “inattentive, imperceptive or self-centred” (2005: 45), suggesting again that exploitation does not require mens rea. 10. Houston (1990) expresses similar reservations about Nel Noddings’s version of the ethic of care. 11. Hampton cites Okin here as sharing this concern. Elsewhere (1997a: 163; 2007a: 16) she refers to Okin’s use of Rawls for feminist purposes and endorses her interpretation of the OP (1997a: 216 n.86; 2007a: 15 n.31). 12. As Tronto writes: “The morally mature person understands the balance between caring for the self and caring for others” (1987: 658). McClain (1991–92: 1195 n.109– 10) points out that Gilligan’s picture of women’s moral maturity requires them to develop a sense of self and to include themselves in the circle of the cared for. McClain arrives at the same conclusion as Hampton: that relational feminism must “struggle against collapsing into a distortion of itself, whereby the self is sacrificed and one’s only responsibility is to others” (ibid.: 1264). O’Grady (2005) reaches the conclusion that in a fully fledged ethic of care, care must be extended to the self as well as to others, via a Foucauldian route. 13. Sample (2002: 258) reads Hampton as trying to balance the two. 14. Indeed, she cites her early article on Rawls on the page where she poses the question about the contract device’s centrality to her thought (2007a: 24 n.46). There is, however, a disanalogy between her use of contract as a metaphor and that which she imputes to Rawls. When the choice is contractarianism or utilitarianism, invoking the contract might convey a belief in the individual’s freedom and equality. But Hampton situates herself in a field marked by two types of contractarianism and, while both acknowledge each person’s free and equal nature, only the Kantian variant requires contractors to acknowledge this in others. 15. Hampton continues to underscore the Hobbesian contribution of self-interest to her thought (1999b: 233). 16. Kamm (1998: 249) thinks that Hampton’s focus on self-interest limits her contractarianism. Radzik reads Hampton as encouraging contractors to consider things from a “narrowly self-interested” (2005: 47) standpoint. Switching the focus from self-interest to respect for intrinsic worth avoids the problem Sample (2002: 267) points to, which is that encouraging contractors to apply standards of self-interest to relationships already skews things in favour of the ethic of justice and away from the ethic of care.

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NOTES

17. 18.

19.

20.

Such privileging of the ethic of justice is problematic for Sample who, as noted above, reads Hampton as trying to balance the two (ibid.: 258). For a fuller comparison of Hampton and Pateman, see Richardson (2007b). See also Pateman (2009) on Hampton. Hampton would have found Nietzsche a muscular ally in her critique of the equation of morality with altruism, yet he is rarely referred to. She evokes but rejects the possibility of a Nietzschean insouciance towards the harm that others might try to do us (1999a: 133; 2007d: 132). For philosophical criticisms of altruism Hampton turns instead to Kierkegaard, completely failing to remark on the masculine addressee in his warning that “The biggest danger, that of losing oneself ” could go unnoticed by the world, whereas losing a body part, money or a wife would not (2007b: 39). This addressee’s masculine identity is particularly noteworthy given Hampton’s point that Kierkegaard took loss of self to be a greater risk for women than for men (ibid.: 61). FC and SLS should be read along with “The Wisdom of the Egoist: The Moral and Political Implications of Valuing the Self ” (1997c) as a trilogy of essays on the theme of morality covering self-regarding as well as other-regarding concerns (ibid.: 21–2). Pateman (2009: 190) notes Hampton’s failure to discuss Kant’s views on women. Schott (2000) provides an overview of feminist critiques and appropriations of Kant’s thought. Although not drawing on Hampton, Denis (2002) provides a helpful discussion of the ways in which Kantian ethics complement feminist concerns.

8. KANTIAN FEMINISM 1. Here there could be a Hobbesian inflection to Hampton’s feminism, for the sort of chronic fear of violence she describes carries echoes of life in the state of nature. She does not make this link, however. Hirschmann’s (2003: 111) account of the chronic fear and uncertainty that marks the lives of recipients of domestic violence also evokes (without invoking) life in Hobbes’s state of nature. 2. Murder would seem to destroy intrinsic value, at least for the views that locate it in reason and autonomy or in personhood. But according to Hampton, murder destroys personhood “and thus our value” but it does not degrade value: “The most such actions can do is to extinguish our personhood, in which case we are not lowered by such actions, because we cease to exist” (DWDR: 128; cf. 2007d: 123). I make no claim to understand this; I do not, for example, understand why degradation is not contained within destruction in this case. In “The Wisdom of the Egoist” Hampton touches briefly on the question of whether a person’s own actions can destroy their intrinsic worth: repeated moral wrongdoing to others, for example. She reiterates that intrinsic worth is permanent, making its auto-destruction an impossibility (1997c: 46). 3. This speaks to the question posed in Chapter 7 as to whether the party subject to disrespect or exploitation needs to experience such treatment as detrimental. The cause of the failure to experience disrespect or domination as such is the same in both cases – lack of a solid sense of self-worth – but in FC the person is exploited because of positive emotions towards others, which do not need to be present in rape. 4. For a statement of the more general claim that self-worth does not depend on a person’s (over- or under-)appreciation of that worth, see Hampton (1997c: 27–8). 5. Schwartzman (2009: 178, 182) provides a good statement of this view. As Mills (2005: 170–72) points out, this sort of critique is not unique to feminism but has been voiced by members of a number of subordinated groups. 6. Hampton could strengthen her case by replacing the “impersonal” with “universal” when talking about the need to respect all selves. Stark (2010) argues that ethic of

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NOTES

7.

8. 9. 10. 11.

12.

care, properly understood, does not eschew abstract universal principles at the level of justification. At this level (as opposed to the level of deliberation), universalism and contextualism are compatible. This attempt is also evident in Nussbaum’s work, which, although universalist, “requires a rich contextual imagining of particular lives and circumstances, seeing how general goals and aims are differently realized in different concrete conditions” (2000b: 250). Hampton (1998: 33) borrows this phrase from Sandra Harding. Cf. Hill Collins on those who “become ‘traitors’ to the privileges that their race, class, gender, sexuality or citizenship status provide them” (2000: 37). In 2002, however, the Canadian Supreme Court ruled that the right to vote not be withheld from prisoners. This allows Hampton to accommodate Spelman’s (1988: 171) critique of Chodorow, according to which Chodorow gives us no way of accounting for women who think of themselves as superior to some men on the basis of their race and/or class. Elsewhere she distances herself from this genealogy, saying only that “some” have argued “that it is the offspring of Judaeo-Christian religious teaching” (SLS: 52).

9. AN ORIGINAL POSITION 1. As with Hampton, there might be links between Nussbaum’s interest in feminism and her work in other areas such as philosophy and literature or the emotions. However, given this work’s focus on her feminist liberalism, those connections remain unexamined here. 2. Nussbaum’s remarks in WHD confirm this impression (WHD: xv). Nussbaum (1999d: 165–82) contains an account of her involvement – from start to end – with WIDER. Surveying Nussbaum’s scholarly career, Harpham (2002: 63–5) finds that this involvement provoked a new phase in her thinking more generally. 3. A reference to WHD before its publication suggests that its original title was Feminist Internationalism (1999d: 199). The Seeley lectures on which the book is based were also entitled “Feminist Internationalism” (2000b: iii). In adopting an international perspective from the start, Nussbaum’s work removes Wendell’s (1987: 90) worry that liberal feminism neglects the situation of women globally. 4. This is not to suggest that her brand of neo-Aristotelianism had nothing in common with others’. For a catalogue of the beliefs she imputes to all neo-Aristotelians, see Nussbaum (2000c: 105–6). 5. Catherine Audard nominates Rawls’s 1985 “Justice as Fairness, Political not Metaphysical” as “the turning point and the foundation of ‘political liberalism’” (2007: 185). Nussbaum (2000c: 102; cf. 124) traces her own turn to political liberalism to a paper she delivered in 1994. Elsewhere she dates this to 1997 (2001b: 137). 6. Nussbaum (2003c: 497) later ascribes this view to Rawls too. 7. For a detailed discussion of Nussbaum’s appropriation of Aristotle, see Mulgan (2000). Nussbaum (2000c: 103–16) responds. 8. Nussbaum seems, over time, to become more enthusiastic about the Rawlsian approach to primary goods, praising it for being attentive to pluralism and the danger of paternalism while remaining cognizant of the material bases of goods such as liberty and equality (WHD: 67). She remains concerned, however, about its inability to consider the distinctness of persons (WHD: 68–9; SJS: 34). For his reply to this charge, see Rawls (1993: 183–6). 9. For Nussbaum’s summary of the similarities and differences between her approach and Sen’s, see WHD (pp. 11–15). Because the HCA serves here as an expression of

292

NOTES

10.

11.

12.

13.

14.

15.

16.

17.

Nussbaum’s feminist liberalism, no assessment of its relative merits as an approach to development is undertaken. But not any time: Nussbaum’s universalism is historically limited. The HCA is “intended for the modern world, rather than as timeless” (WHD: 77). Cf. Flax (2001: 48). For a different view, see Brukamp (2001: 93–4). Given the influence of Marx, it is interesting that work is not a capability in its own right. It appears as part of capability 7, Affiliation, part B (WHD: 79–80) and as part of capability 10. At other times, however, she uses the terms “capability” and “function” together or synonymously (WHD: 151, 298, 303). I can only speculate that her occasional yoking together of capability and function is a legacy of her immersion in Aristotle and his concern with functioning. However, she finds an Aristotelian equivalent to the idea of capability in the term dunamis, which refers to the “condition … in virtue of which one is able to do something” (1992a: 47 n.22). To apply a distinction drawn in Taylor’s comparison of positive and negative conceptions of liberty (1985b: 213). I am not seeking to map Taylor’s whole argument about liberty onto Nussbaum’s thought but simply to suggest that his opportunity–exercise distinction is helpful for thinking about her HCA. Phillips (2001: 259, 264) criticizes her lack of concern with the inequalities that might exist once everyone has crossed the capability threshold. This is connected to Phillips’s larger point that Nussbaum’s feminist liberalism would be better served by a focus on equality rather than autonomy. Arneson (2000: 55) also takes Nussbaum to be agnostic about what happens on the other side of the threshold. However, Nussbaum presents the HCA as a necessary, but not sufficient, condition for the realization of justice, deferring any fuller discussion of what else justice requires (WHD: 75; 2000c: 125– 6). Phillips later acknowledges that it is a question of deferral rather than disinterest (2002: 399). In FJ, however, while Nussbaum continues to describe the capabilities approach as “a partial account of basic social justice” (FJ: 274), she no longer promises future discussion of a complete theory of justice. Hers is not intended to be one (FJ: 71, 75–6, 155). She seems to have opted for widening the population encompassed by, rather than filling out, her conception of justice. A number of Nussbaum’s interpreters see her liberalism as perfectionist. See Dzur (1998); Okin (2003: 311); Deveaux (2006: 77, 156); Freeman (2006: 389–91). At one stage Nussbaum even suggests that the best form of liberalism to accompany the capabilities approach is a “perfectionist liberalism” (1999f: 30). Hilary Charlesworth also detects “a hierarchy in the central capabilities, with nondiscrimination taking precedence over all others” (2000: 77). She suggests that equal outcomes might be a more beneficial goal for women than non-discrimination (ibid.: 77) but, with its focus on opportunities rather than outcomes, I do not see how the HCA could accommodate this. I take this to be a legacy from earlier formulations of the HCA. In “Aristotelian Social Democracy”, first published in 1990, Nussbaum identifies two “architectonic functionings” – practical reason and affiliation – which “are not simply two among others. They … hold the whole enterprise together and make it human” (2002a: 72). Dignity seems to be added to later formulations; it is not, for example, mentioned in this essay’s list of the ten capabilities (ibid.: 70–71). Nussbaum’s postscript to this essay explains that dignity’s addition reflects the greater influence of Kant on her later thinking (ibid.: 91). In FJ, she returns explicitly to sociability and practical reason as “architectonic capabilities” (FJ: 162; cf. 2001b: 145) and includes dignity too. She does not, unfortunately, explain how this is compatible with her claims that all the items on the capabilities list are of distinct value and equal importance (FJ: 84, 166–7).

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18. FJ refers to “human sociability, which means that part of a life with human dignity is a common life with others organized so as to respect that equal dignity” (FJ: 274). 19. Thus “freedom of religious exercise” is part of capability 4, Senses, Imagination and Thought, while “liberty of conscience” belongs to capability 6, Practical Reason. While this is not the only time notionally separate items on the list converge, it is unclear why Nussbaum did not place religious questions exclusively under capability 6. Nussbaum refers to “religious women and men as choosers of a way of life” (WHD: 188) and notes that many people’s “search for an understanding of the ultimate meaning of life in one’s own way” (WHD: 179) is informed by religious beliefs. This would not amount to making religion “a separate capability all on its own”, so Nussbaum’s explanation for why she does not do that (WHD: 208) does not rebut my suggestion. 20. As Chapter 11 reveals, Nussbaum thinks of the family in terms of affiliation. However, she recognizes that “children are simply hostages to the family in which they grow up” (2003c: 504), so either their status as affiliates needs fine-tuning or the value of affiliation does not rest on the mutual recognition of each affiliate’s practical reason and dignity. 21. Although elsewhere she suggests that there are two (what I am calling) Ur-capabilities: “practical reason and sociability pervade and organize the entire list of capabilities” (2003b: 30). The exclusion of dignity would seem to be an oversight, and perhaps a remnant of her earlier thinking about the two architectonic functions. 22. Cf. Brukamp’s (2001: 99) question about how sociability and practical reason can be both architectonic capabilities and items on the list. 23. For a helpful discussion of the tensions this conclusion creates for Nussbaum’s wider framework, see Chambers (2008: 176–201). 24. Nussbaum’s claim that FGM deprives individuals “of the opportunity to choose sexual functioning (and indeed, of the opportunity to choose celibacy)” (WHD: 87; cf. SJS: 44) is harder to follow. Without any possibility of sexual activity, celibacy is enforced, not chosen. However, because FGM does not render its recipients sexually inactive, it does not deprive them of all sexual functioning. See Schweder (2002: 219, 221, 228, 232) for claims that FGM does not annihilate sexual pleasure. Moreover, the range of practices captured under the label varies widely and their effects are correspondingly diverse. 25. She does, however, think it legitimate for the government to disseminate information about its dangers in the hope of reducing smoking (2000c: 130; FJ: 171). 26. This conclusion is further complicated by Nussbaum’s opposition to compulsory voting (2000c: 131; 2001b: 144). It could be that the HCA would allow it but she would personally oppose it, but then presumably the point above about needing a very good capability reason could induce her to support it personally. Or it could be that she has changed her position. Whatever her ultimate stance on compulsory voting’s compatibility with the HCA, Nussbaum retains her concern with “all subtle obstacles to voting” which “must be identified and removed” (2000c: 131; cf. 2001b: 144). This leaves room for less global strategies than compulsory voting to promote this capability in groups that persistently fail to vote. 27. See Brukamp (2001) on the difficulty of separating capability and functioning. 28. For an account of Nussbaum’s HCA that makes no reference to gender, see Alexander (2008). 29. At one point she tacitly acknowledges the problems with aggregation on the basis of sex, but in an unhelpful way. She likens Western women to poor Indian men and contrasts both with poor Keralan women in terms of their accuracy in estimating the cost of a meal (WHD: 24 n.28). While poor Western women are wealthier than poor non-Western ones, the many women in the US trying to feed a family from food

294

NOTES

30.

31.

32.

33.

34.

stamps would no doubt manifest their Keralan counterparts’ accuracy in measuring the cost of a meal. As Jaggar puts it, “All over the world, women suffer more than men of the same ethnicity, class, and even family from poverty, overwork, violence, sexual abuse and political marginalization” (2005: 185, emphasis added). Reliable statistics from developing countries on rape, sexual harassment and domestic violence are lacking (WHD: 3), which itself reveals that these problems, which are typically if not uniquely female, are not taken seriously enough. See also Nussbaum (1996: 206–8) for a similar round up of the ways in which feminist philosophy can continue, or needs to change, to embrace the conditions of women worldwide. Quillen (2001: 94–5) chides Nussbaum for not paying attention to issues of implementation, but given the HCA’s multiple realizability clause, this would be a massive undertaking. Nussbaum could also reply that questions of implementation are best decided by those in the immediate context and are not for her to prescribe. Nussbaum criticizes Butler for disengagement from women’s concrete circumstances (1999e: 38), among other things.

10. WHAT WOMEN WANT 1. In FJ, however, Nussbaum casts doubt on the idea that women have internalized this sense of themselves (FJ: 255). This would make the problem of adaptive preferences, to which she devotes considerable energy, less acute. Nonetheless, later in that work she talks about women believing themselves to be not entitled to education (FJ: 279) and becoming, more generally, “content with a bad state of affairs” (FJ: 283). It might be possible to reconcile these seemingly divergent views by saying that even though women always have a sense of themselves as separate persons with their own lives, when it comes to particular goods they get used to expecting less than men do. 2. See also Nussbaum’s critique of Rawls for violating this principle in The Law of Peoples (2006: 252-3, 262). Apart from a laudatory but highly general introductory paragraph, none of the similarities between Okin and Nussbaum’s views on this topic appear in her reply to Okin (Nussbaum 1999b). 3. As Kalhoff and Schlick (2001: 81) suggest, Nussbaum defends liberal communities. 4. Nussbaum also links Okin’s views on religion to her comprehensive liberalism. The connection Nussbaum posits between views of religion and comprehensive liberalism is explored in Chapter 13, while Chapter 14 examines whether Okin is a comprehensive liberal. 5. Muslim feminists re-reading the Koran is one example (Okin & Ackerly 1999: 149–51). 6. Although it should be noted, in anticipation of what is called below Nussbaum’s translation problem, that she admits in the following paragraph that there is some gap between what Jayamma and Vasanti say they want and the formulations in the capabilities list (WHD: 109). 7. Cf. Nussbaum’s later observation that “many women’s groups I have worked with in India incorporate the [moral] constraints I would favor” (2004: 200). Vasanti “is a participant in a group that deliberates in accordance with procedures that I describe … as characteristic of the best informed-desire approaches”, while Jayamma “is an active participant in the political culture of Kerala, which has related features” (ibid.: 203). 8. Nussbaum (2004: 202–3) later clarifies that the two women Okin mentions in this criticism – Vasanti and Jayamma – did not serve as informants: rather, they were described in order to make the struggles of Indian women vivid and concrete to an

295

NOTES

9. 10.

11.

12.

13.

14.

15.

16. 17.

18.

19. 20.

296

American readership. Jayamma’s life had been discussed in the development literature (WHD: 17 n.21) and Nussbaum later admits that most of the information about her comes from those sources (2004: 204). Phillips, by contrast, finds that WHD “clearly establishes the claim of the capabilities approach in addressing the struggles of women around the world” (2002: 400). Nussbaum’s further inference that this also manifests the women’s wish not to impose functioning on others, and thus that they affirm this aspect of the HCA (WHD: 302), seems inflated. Avigail Eisenberg identifies a version of what I am calling the translation problem in SSJ, for it “is unclear why one should think that every time someone in the world talks about personhood, autonomy or self-respect, they are speaking the language of liberalism” (2002: 618; cf. Schwartzman 2005: 157). Although not responding to the HCA in particular, Butler’s question for Nussbaum is relevant here too: “What kind of cultural imposition is it to claim that a Kantian may be found in every culture?” (1996: 52). She also emphasizes the need for cultural translation in order to achieve a more inclusive conception of universality (ibid.: 49–52). The first method for making the voices of the poor audible also involves “dialogue with one’s fellow citizens” about the HCA’s value (Nussbaum 2004: 199). The second seems to be completely different, referring to the HCA empowering the disadvantaged to participate in political debate (ibid.: 199; cf. 194). This does not directly answer the question of how the HCA makes the voices of the poor audible on the topic of its derivation or justification. As far as I can see, the only way this could work is via a conditions of possibility logic; if the only way such voices can be heard is via the provisions of the HCA, then disavowing the HCA is a performative contradiction. Nussbaum’s reply is more wide-ranging than my discussion reflects. I focus on its answer to the question “does my theory respond to Okin’s charge that I have not sufficiently allowed poor people to speak?” (Nussbaum 2004: 195). Some of her reply appears to be beside Okin’s point, such as the long defence of the HCA’s compatibility with reasonable pluralism (ibid.: 197–9). Phillips (2001) proposes that a focus on equality rather than choice would allow the HCA to achieve many of its goals while avoiding this dilemma. However, for reasons explained in the previous chapter, the HCA cannot require equal outcomes. With its insistence on minimal thresholds, it endorses a version of equal opportunity. But Phillips praises Nussbaum for grappling with the problem. Although she does not resolve it to Phillips’ satisfaction, she acknowledges adaptive preferences as “one of the central dilemmas for radical or feminist politics” (2002: 400–401). Phillips admits that she does not have an answer either. Jaggar (2006: 315–16) also questions Nussbaum’s appeal to intuitions. Jaggar concludes that Nussbaum has failed in this endeavour (2006: 320–21; cf. Norton 2001: 745–6). Nussbaum would respond that Norton’s (2001: 746) objection that SSJ neglects the work of non-Western feminist scholars is inapplicable to WHD, for its footnotes “are intentionally focused on the work of leading Indian feminist scholars, such as Zoya Hasan, Bina Agarwal, Leela Gulati, and Jasodhara Bagchi, who are, unfortunately, relatively neglected in the United States” (Nussbaum 2004: 201–2). It is curious that Aristotle’s critique of Plato on this question of private property did not give her stronger views about its importance. Aristotle’s defence of slaves as property could, however, make one sceptical about the value and durability of his views on property. For a discussion of adaptive preferences in a Western context, see also SSJ (pp. 130–53). Her precise claim is that “liberalism must sometimes remain silent about these choices”

NOTES

21. 22.

23.

24. 25. 26.

27.

28.

29.

30. 31.

(Levey 2005: 128, emphasis added), which provides further evidence that she allows for a more nuanced view of liberalism and moderates her own claim that liberalism and feminism are at odds about adaptive preferences. Nussbaum’s opposition to FGM is an exception here, underlining once again its anomalous position within her framework. This is, curiously, the only reference Levey makes to Nussbaum’s work on adaptive preferences. It is surprising that an argument aiming to show that the marriage of liberalism and feminism must founder on the issue of adaptive preferences fails to take account of one of the strongest statements to the contrary. Jaggar (2006: 320) decides that Nussbaum, perhaps unwittingly, arrogates this power to herself and concludes that “philosophers still have much to do in figuring out how to reason philosophically across cultures in ways that are inclusive, respectful of difference and sensitive to inequality” (ibid.: 321). It thus continues a feature that Nussbaum associates with Aristotle (Chapter 9, §1). Nussbaum generalizes about women here but provides only a single case study. It is important to my reframing of her argument that this is indeed typical. Chambers seems correct in the conclusion she takes to follow logically from Nussbaum’s laudable attention to adaptive preferences. Chambers contends that stated desires that manifest an individual’s lack of respect for herself do not deserve respect: “Indeed, refusing to respect that desire is a crucial part of our respect for her as a being in her own right” (2008: 199). Chambers also addresses adaptive preferences from a feminist liberal point of view, providing an additional challenge to Levey’s thesis about their incompatibility. Julie McKenzie (2009) also encourages Nussbaum to develop a more contestable universalism. For her this would have the advantage of bringing Nussbaum’s position into closer dialogue with Butler’s. Fricker has in mind items such as marital rape, “being able to hold property” and “the right to seek employment on an equal basis with others” (2000: 472). The first is not in WHD’s list but Nussbaum retained the other two from SSJ. Whether specified or not, marital rape is incompatible with the HCA, given its emphasis on individual choice and dignity. It could be numbered along with “sexual assault, child sexual abuse, and domestic violence” (WHD: 78) as things precluded by the third capability of Bodily Integrity. The reaction from women’s rights groups in Afghanistan in 2009 to the proposed Shia Personal Status Law, which would have effectively legalized marital rape, suggests that this is not a specifically Western concern. Nussbaum’s defence of property rights was explained in §3. Fricker takes this, along with Nussbaum’s point about being able to seek employment on an equal basis with others, to presuppose capitalism, but I read the latter as excluding gender-based restrictions on paid employment. Schwartzman’s critique of Nussbaum on this score strikes me as captious. While admitting that Nussbaum “credits a consciousness-raising program for prompting these women’s changed self-awareness” (2006: 105), she accuses Nussbaum of writing as if what really matters was giving individual women concepts they had previously lacked (ibid.: 105–6). By way of correction, Schwartzman points out that “through involvement in various educational and economic programs, and through interaction with other women who are also politically engaged, a woman may come to view herself and her life possibilities differently” (ibid.: 106). But this is precisely Nussbaum’s point about the ability of women’s collectives to promote capabilities (WHD: 288–9). McKenzie takes Nussbaum’s primary justification for the capabilities approach to lie in her “intuitive conception of human nature” (2009: 351). For praise of Nussbaum’s informed awareness of other cultures, see Witt (2000: 232); Fricker (2000: 471). For a dissenting view, see Beard (2000).

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11. CAPABILITIES FOR CARE 1. Nussbaum (1999f: 26, 49 n.45, 50 nn.51–2, 55 n.101) cites Okin. See also Nussbaum (1992a) for an extended discussion of Okin’s work. Chapter 4 of WHD on the family cites Okin repeatedly (WHD: 244 n.5, 246 nn.7–8, 249 n.11, 250 n.13, 252 n.15, 270 n.47, 273 n.54). Nussbaum also cites Hampton there (WHD: 158–60). Nussbaum dedicates to Hampton’s memory the chapter in which she cites her: chapter 2 on adaptive preferences (WHD: xix–xx). See also Nussbaum (1999f: 55 n.101) on Hampton. 2. In Chapter 9, §3, I raised some doubt about whether affiliation counted as an Urcapability by pointing out that its value was contingent on the affiliates’ mutual recognition of practical reason and dignity. This seems to presume their equality, and I suspect that Nussbaum does have a model of affiliation among equals in mind when talking about this capability (1999d: 189). Yet such an image is hard to apply to the family if young children or dependents are present. While it is possible to recognize the dignity of dependents, the claim about practical reason would need to be reworded to say that the affiliates should recognize one another’s ability or potential for practical reason. 3. Along with his skewed presentation of Nussbaum, Slote’s discussion of liberalism and care neglects Okin and Hampton. He generalizes about liberalism on the basis of very limited evidence, and his treatment of Rawls is scanty and outdated. 4. See Nussbaum (1992a: 44) for an early reference to the Millian view of the family as the first school of justice. She reiterates this in SSJ (p. 272). Okin’s view is discussed in Chapter 4, §1, “Home schooling”. 5. Discussing the salutary effects of these groups, Nussbaum offers a contrast with many Western women whose affiliative energies are focused on romantic relationships with men or women and thence on the nuclear family (1999d: 189–90; 2000b: 260). Yet this neglects the experience of many African American women, for Hill Collins writes of “the centrality of women in African-American extended families … the kin unit tends to be woman-centered” (2000: 178). 6. Nussbaum (cf. WHD: 273, 279) follows Rawls (IPPR: 160–63; JFR: 166–8) in designating children as future citizens, but this is a curious locution. First, in most states children are citizens; they are eligible for passports and other age-appropriate state benefits. By construing children as future citizens, Rawls and Nussbaum seem to conflate citizenship in general with active citizenship: voting rights, jury duty and so forth. But active citizenship is but one dimension of citizenship. Second, it is unclear why the liberties and opportunities of children qua children in the present do not count when assessing the legitimacy of state intervention in the family. In some cases they clearly do: physical and sexual abuse, for example. The depiction of children as future citizens seems a misleading locution for what Rawls and Nussbaum are trying to get at. Hampton (FC: 16 n.33) calls children “future members of society”, which is even more misleading. 7. The others are extending justice across national and across species boundaries (FJ: 1–3). This was not Nussbaum’s first reference to the dependency critique (see also WHD; 2000a; 2003b: 29; 2003c: 512–14), but it is her most sustained reply. 8. For a different assessment of the ability of justice as fairness to provide justice for disabled people, see Freeman (2006). 9. Indeed, each of Nussbaum’s three frontiers requires this (FJ: 92). 10. Cf. Hampton on the three possible sources of dignity (Chapter 7, §3). Both Hampton and Nussbaum opt for the most inclusive. 11. Capabilities 1, 2, 8 and 9 are identical across the two lists. As well as losing the reference to compassion, capability 7, part A, loses the capability “for both justice and

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12. 13.

14.

15. 16.

17.

18.

friendship” (WHD: 79). Capability 3 loses “having one’s bodily boundaries treated as sovereign” (WHD: 76); there is also a slight reordering of words that does not seem to have any significance. Capability 4 loses the adjective “self-expressive” from works as well as the phrase “Being able to search for the ultimate meaning of life in one’s own way” (WHD: 79) and replaces “non-necessary” with “non-beneficial” pain. Capability 5 loses “by traumatic events of abuse or neglect” (WHD: 79). Capability 6 gains “and religious observation” (FJ: 77). There is some slight reordering of the words in capability 7, part B, but this does not seem to have any significance. Its reference to “being able to work as a human being, exercising practical reason and entering into meaningful relationships of mutual recognition with other workers” (WHD: 79–80) gets relocated to capability 10, part B (FJ: 78). It is a pity that Nussbaum nowhere (to my knowledge) explains the rationale for these amendments. See FJ (pp. 217–19) for some of the differences Nussbaum sees between her approach and Kittay’s. Her draft of such a principle reads: “To each according to his or her need for care, from each according to his or her capacity for care, and such support from social institutions as to make available resources and opportunities to those providing care, so that all will be adequately attended in relations that are sustaining” (Kittay 1997: 252). Her wording is ambiguous: “it is highly desirable that public education should emphasize the importance of care work” (FJ: 214). I take her to mean public education in the wider sense rather than the public school system, for the latter would reach a limited number of citizens. This wider meaning of public education also seems compatible with her reference to “the public education of a liberal society” (FJ: 412). But this is not to imply that educating children about dependency and care is unimportant. On the contrary, because Nussbaum holds that socialization into current conceptions of masculinity makes boys and men reluctant to see care as their responsibility, it is essential that education about caring occur for young people too. Moreover, given Nussbaum’s adherence to the home-schooling thesis of Mill and Okin, if the distribution of caring work changed within the family, children would learn different lessons about care there too. Schwarzenbach advocates a “civil caring service” to get young men fully involved in the practice of care and to efface the prejudice that this is women’s work (2009: 246). She cites Williams’s hypothesis about men’s reluctance “to jeopardize their career advancement or to be perceived as marginal part-timers” (FJ: 215) to explain why Swedish women take more advantage of such policies than do their male counterparts. However, the statistics Nussbaum cites appear to be from twenty years prior to the publication of FJ (p. 436 n.62) and things have changed. Katrin Bennhold (2010) reports that 85 per cent of Swedish fathers now take parental leave. Women still take four times more time off with children, but legal change begun in 1995 creating incentives for fathers to take leave has had a powerful impact. The comprehensive doctrine of Catholicism would be unable to endorse these capabilities, given the Catholic Church’s opposition to abortion and condom use. Nor does Catholicism share the view that every pregnancy should be intended in order to be valued. Similarly, Nussbaum’s claim that “if we could engineer the genetic aspects of it [congenital cerebral palsy and severe mental retardation] in the womb, so that she [Sesha] would not be born with impairments so severe, that, again, is what a decent society would do” (FJ: 193) ignores the opposition the Catholic Church would mount to this practice and this understanding of decency. Unfortunately, Nussbaum does not address these issues when arguing that her political liberalism is more hospitable to religious worldviews than is comprehensive liberalism (Chapter 13). Nussbaum (2003a: 168) disagrees with MacKinnon, however, about whether the

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19. 20. 21.

22.

23.

24.

25.

appeal to equal protection can suffice to protect women’s reproductive freedom. She argues that liberty is also an indispensable value for this question. As noted above, in FJ, capability 3 loses WHD’s reference to “having one’s bodily boundaries treated as sovereign” (WHD: 78). In the Catsouras case, it is not control over information about oneself that is being sought, but over information about an (erstwhile) intimate. Indeed, in response to Schaeffer’s (2001: 704) claim that MacKinnon is effectively extending Mill’s harm principle to pornography, MacKinnon replies “I would gladly cite John Stuart Mill for opposition to pornography based on its harm” (MacKinnon 2001: 710). Chambers (2008: 75) reports that Dworkin and MacKinnon reject this charge. Hampton (1997a: 205) points out, however, that after anti-pornography legislation passed in Canada, legislation that she sees as akin to that advocated by MacKinnon and Dworkin, Canadian Customs officials seized sexually explicit literature, including work by Dworkin. Schwartzman’s (2006: 164–7) comparison of liberal and feminist approaches to pornography strikes me as a case where she ignores the sort of feminist liberal approach advanced by Nussbaum and Hampton. Both share MacKinnon’s and Dworkin’s assessment of the harm pornography can cause. And Schwartzman’s conclusion – “While this need not require the ‘banning’ or ‘censorship’ of pornography, it does suggest that we attempt to reduce the production and distribution of such materials and that we think critically about the effects of various media images” (ibid.: 165) – is not so far from Nussbaum’s or Hampton’s position. Okin also portrays prostitution primarily as an employment issue, pointing out that some prostitution could be considered as a legitimate contract between buyer and seller. She refers to contracts “made by prostitutes who operate legally in policeprotected situations – in which they can refuse certain clients or certain requests – and free from the mediation of pimps”. She contrasts this with more typical forms “in which the prostitute lacks protection, is exploited by a pimp, and has no effective choice over which sexual services she will provide or refuse” (1990b: 667). Cf. Charlotte Witt (2000: 232–3) on how Nussbaum’s approach to prostitution differs from her approach to pornography.

12. IN THE COMPANY OF CRITICS: FEMINIST LIBERALISM MEETS FEMINIST CRITICS OF LIBERALISM 1. Rather than rehearse in detail the arguments made by Okin, Hampton and Nussbaum, I extract their general responses to these criticisms. More elaborate accounts of the positions behind these headlines can be found in the relevant chapters. I also provide condensed accounts of the feminist critiques of liberalism; fuller versions appear in Chapter 1. 2. Cf. Phillips (2001: 250, 260). On liberalism’s internal heterogeneity, see Hampton (1997a: 178–81; 2007c); Nussbaum (1999f: 15). 3. My discussion does not cover all the issues associated with ideal theory, but only those emphasized by feminist critics of liberalism. 4. Cf. “liberal feminism can admit the necessity of deep social change … if this is what the promotion of free and equal individuality among citizens requires” (Gordon 1994: 166). 5. Phillips’s (2001: 249) point, as reported in the Introduction, about Rawls changing the perception of liberalism’s imbrication in the free market, is relevant here.

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6. Cf. Wendell on the extensive social change that a sincere commitment to equal opportunity would entail. This “turns out to be a more radical political goal than it might at first appear” (1987: 86). 7. Cf. Hirschmann (1999: 35–6, 49; 2003: 172–3). For a fuller discussion of this movement, see Reilly (2009). 8. She also talks about “giving prostituted people human rights, including people used in pornography and violated as a result of it” (2010: 507). 9. Schwartzman refers to MacKinnon encouraging “women to redefine rights in ways that enable us to argue for what we, as women, most need” and points out how close this is to the language of liberalism (2006: 102). But she arrives at a different conclusion, emphasizing the distance separating MacKinnon from contemporary feminist liberals. 10. Nussbaum (2007a: 7) claims that MacKinnon is typically reluctant to endorse the idea of human dignity. See also Hampton (1996: 22; 1997a: 202–3) on the extent to which Dworkin and MacKinnon rely on a conception of dignity. 11. In a largely positive review of Eisenstein (1981), Pateman faults Eisenstein for assuming “that the ‘liberal’ side of all the authors is an abstract, atomistic individualism” (1982: 321). Pateman believes that with the exception of Hobbes, classical contract theorists envisaged individuals as naturally related to others (1992: 182). 12. Cf. Anderson (2009: 133). In response, Schwartzman (2009: 180) agrees that her focus is methodological individualism. However, she expresses reservations about moral, or as she calls it normative, individualism too (ibid.: 181). 13. There are times when Nussbaum seems to encourage such a reading, however. “Liberalism holds that the flourishing of human beings taken one by one is both analytically and normatively prior to the flourishing of the state or the nation or the religious group” (1999f: 21). This reference to analytic priority could imply that individuals have to be “diagnosed” one by one without any reference to their broader socioeconomic location. But Nussbaum cannot mean this, given her well-documented willingness to generalize about the condition of women, especially, but not exclusively, those struggling with poverty. 14. Nussbaum (2007a: 8) continues to praise MacKinnon and Dworkin. Chambers (2008: 169) also comments on Nussbaum’s use of, and agreement with, MacKinnon and Dworkin. 15. This applies, a fortiori, when we move beyond Western societies, as Tobin (2009: 149) implies. 16. MacKinnon’s charge that liberalism “has yet to face either the facts or the implications of women’s material inequality as a group” (2001: 709) takes no account of the work of the feminist liberals surveyed here. 17. Gatens (2008) brings out Pateman’s association of the social contract tradition with its libertarian manifestation. Pateman’s concern with self-ownership comes out in a number of essays in O’Neill et al. (2008). One of Okin’s reactions to The Sexual Contract was that it “ends up confusing all of liberal contract theory with libertarianism” (1990b: 666). 18. Okin (1990b: 666) held that the feminist criticisms Pateman made of contemporary contract theory in The Sexual Contract did not apply to Rawls. 19. See Anderson (2009) for a different, but I hope not incompatible, argument about liberalism’s ability to deal with structural forces that oppress. 20. When Rawls does address the place of women in justice as fairness, he talks in nonideal terms, as the passage on the “long and historic injustice to women” cited in Chapter 4, §3 testifies. IPPR, section 5, also refers to laws regulating divorce as disadvantageous to women, and to gender discrimination in the workplace.

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21. But this is not simply a later development in Rawls’s thinking: see also TJ (pp. 245– 6) on the practical relevance of ideal theory. Given this, and the evidence of Rawls’s awareness of real-world problems, Mills (2009) is overstating the case when he complains of ideal theory becoming an end in itself. While Mills is correct to note Rawls’s lack of explicit discussion of race, Rawls cannot be accused of showing no interest in any real-world problems. Even Schwartzman (2006: 57–8, 60, 63, 69, 171) acknowledges his concern with socioeconomic disadvantage. Part III of The Law of Peoples also includes non-ideal theory and references to other forms of injustice appear in other parts of that short work (Rawls 1999: 7, 21; cf. FJ: 239; Schwartzman 2006: 61). 22. Nor does it follow that a single theorist must perform them. Rawls devoted his professional life to the articulation and rearticulation of justice as fairness, and still bequeathed many questions. How could he also be expected to have identified the range of oppressive social structures that operate in liberal societies? 23. Mills draws from Okin and Hampton and strives to synthesize their views of the social contract with Pateman’s (Pateman & Mills 2007b: 7; 2007c: 21; Mills 2007a: 84–92). 24. Schwarzenbach also insists that “the hard won insights” of Rawls’s theory “should not be forgotten – least of all by feminists” (2009: 142). 25. Wingrove (2009: 62) offers an insightful discussion of this in the case of Okin.

13. PERSUASIVE UNIVERSALISM AND POLITICAL LIBERALISM 1. Stephen de Wijze (2000) argues that political liberalism can accommodate many feminist concerns, just as Corey Brettschneider (2007) offers a robust defence of the idea that Okin’s concerns can be addressed via political liberalism. Christie Hartley and Lori Watson (2010) also mount a strong defence of political liberalism for feminist purposes. Elsewhere I have argued that in satisfying his feminist interlocutors, Rawls moves beyond political liberalism to a partially comprehensive one (Abbey 2007). But nothing in this chapter hinges on the correctness of that argument. 2. As noted in Chapter 9, Nussbaum has not always thought about the HCA in these terms (1999d: 171 n.17; 2002a: 91), just as some of her earlier writings had advocated the benefits to feminism of a more comprehensive conception of the good (1992a: 46; 1992b: 1021). 3. Of course, this claim to being freestanding assumes that the public political culture has not itself been unduly shaped by any particular metaphysical or comprehensive doctrine, but this is probably unrealistic. Consider, for example, the powerful role Christianity has played in shaping the public political culture in the US. 4. WHD’s detailed subject index contains no entry for the basic structure. Although FJ’s index lists many entries for it (FJ: 464), a number apply to Nussbaum’s description of Rawls’s position and a number refer to much looser discussions of social structures than the stricter, more technical sense in which Rawls uses this term. 5. The implication that affective ties are included in the basic structure is peculiar. 6. Because the HCA focuses on human rights and minimal social justice, the real parallel between her approach and Rawls’s lies “not with his account of social justice and the basic structure of a well-ordered society, but rather with the account of human rights that is part of his Law of Peoples” (Freeman 2006: 410). 7. This is not alleviated by Nussbaum’s apparent equation of the basic structure with the state: “we ought to respect the state, that is, the institutions of the basic structure of society” (FJ: 261). 8. As Kamtekar points out, in practice, the HCA “would be the political realization of deep liberal institutions” (2002: 268).

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9. This appears as part of Flax’s swingeing critique, which includes charges that: the HCA’s means undermine its goals; it is unlikely to undo gender domination; and it fails to explain why the capabilities generate political imperatives. Nussbaum replies that she agrees “with more or less everything Flax says” (2001a: 59) and rehearses some of her key points about the internal heterogeneity of cultures. Her claim to extensive agreement with Flax baffles me: one of us is misreading the depth of Flax’s criticism! 10. Nussbaum would not seem to accept this as a difference between her view and Rawls’s, for she suggests that his doctrine is more aspirational too. In both cases, “All that seems to be required is that the requisite ideas be embedded there in some form” (FJ: 301). But it is not even clear that the requisite support for capability 8 is there in any form in South Asian cultures. 11. Note again Nussbaum’s tendency to conflate capability and function. I take it that she means capability rather than function here, for reasons outlined in Chapter 9. 12. Chambers (2008: 160–61, 168, 171, 200) deems political liberalism incompatible with Nussbaum’s powerful awareness of adaptive preferences, because political liberalism affords no grounds to justify state intervention with unjust social norms and problematic personal choices. 13. Cf. Abbey on “the fact of pluralism among reasonable comprehensive liberal doctrines” (2007: 23). Nussbaum does not engage in any detail with a variety of forms of comprehensive liberalism to explain why she rejects them all in preference to political liberalism (Barclay 2003: 19–20). Gerald Gaus (2004) concludes that the category of comprehensive liberalism is not very informative because it includes a wide array of different sorts of doctrines. 14. As Deveaux reads Nussbaum, her list of capabilities privileges “a life of autonomy, choice and reflection”; autonomy is “an ultimate good” (2006: 74; cf. 77–8, 156–7). Others imputing a view of human dignity understood as autonomy to Nussbaum include Kamtekar (2002: 263), Dzur (1998), Gesang (2001: 73) and Chambers (2008: 159–201). 15. Nussbaum does not give a more precise source than “the passage in On Liberty” (2003b: 35). I assume she is referring to Chapter III, but I cannot find her exact quotation there. Mill does refer to an “insidious form” of the belief that humans should obey religious authority and that they must all exercise their capacity for obedience in exactly the same way. But, pace Nussbaum’s presentation, insidious does not here refer exclusively to Calvinism but to a “narrow theory of life” that goes beyond Calvinism and which asserts that one capability should be developed to the detriment of all others (Mill 1997: 89). 16. Nussbaum asserts that Mill would entitle the state “to cast aspersions on the teachings of authoritarian religions to foster the comprehensive doctrine of liberty” (2003c: 511). She provides no evidence for this, and I can find none in Mill’s text. If individuals voluntarily practised Calvinism, even if Mill deemed this to be self-harming, it would be hard to see how On Liberty could justify state intervention unless it harmed others. Involuntary adherence to Calvinism would be a problem for Mill, as for Nussbaum. 17. This idea of a religious warrant for diversity could come from Wilhelm von Humboldt, who provides the epigraph to On Liberty. 18. This has, however, been omitted from capability 4 in FJ (p. 76). In the absence of any explanation, it is hard to know how to interpret its excision. Capability 6 continues to include “Being able to form a conception of the good and to engage in critical reflection about the planning of one’s life”, but Nussbaum now adds “(This entails protection for the liberty of conscience and religious observance)” (FJ: 77). Rather than proposing any substantive change to the capabilities list, Nussbaum might be simply tidying up these ideas about religion, as recommended in Chapter 9, §3. 19. On authentic religiosity as a way of life recognized by Mill, see Rawls (2007: 309–10).

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20. Nussbaum herself tacitly acknowledges this when she concedes that “Some secular humanists in this comprehensive liberal tradition manifest … a general hostility to religion” (WHD: 176, emphasis added). As she later notes, “the secular humanist view is a form of comprehensive liberalism” (WHD: 180), but her argument against comprehensive liberalism proceeds as if it were a form of secular humanism. 21. As (FJ: 300) indicates, one point retained from Nussbaum’s reply to Barclay is the observation that the political culture might contain myriad ideas, only some of which are compatible with the principles of political liberalism (Nussbaum 2003b: 31). 22. Pace Rawls’s above-noted distinction between political and moral autonomy (§2), this seems to ensconce an ideal of moral autonomy in political liberalism. 23. Elsewhere (2003c: 493) Nussbaum talks about the OP as modelling benevolence, but refers to TJ only. 24. His references to civic friendship (TJ: 5; PL: li) could, perhaps, be developed in this direction. But it is hard to reconcile the idea of seeing the good of others as part of my own good with the political/comprehensive separation, for this separation places reasonable conceptions of the good beyond the reach of politics. 25. Cf. “In deciding the primary social goods, Rawls relies upon a conception of free and equal moral persons with moral powers which he believes is implicit in democratic culture. But Nussbaum relies upon a more inchoate idea of human dignity to decide which capabilities are central” (Freeman 2006: 419 n.221). 26. I cite the version published in 2002. 27. Nussbaum herself notes, in a different context, that “a remarkable degree of agreement has been found across cultures concerning fundamental rights for women” (WHD: 38). The Western genesis of rights discourse does not seem to have been an impediment here. Indeed, in FJ she claims that “there is nothing particularly western about the idea that each and every person has certain basic rights” (FJ: 254).

14. TRANSFORMATIVE LIBERALISMS 1. As I have noted elsewhere (Abbey 2007) it is curious that, when discussing gender, Rawls invokes favourably the very Mill so often nominated as manifesting the sort of comprehensive liberalism Rawls wants to put behind him (IPPR: 156–7 n.58). See also Mann & Spinner-Halev (2010: 247, 264) on this anomaly. One possible resolution would be to claim that in The Subjection of Women Mill is a political liberal, whereas in On Liberty he is a comprehensive one. I doubt this would succeed, but this is not the place for its fuller exploration. 2. Cf. Callan (1997: 17–20). In a footnote to his point about a society united around comprehensive liberalism requiring the use of state power to keep it so, Rawls admits: “If one objects that, consistent with Kant’s or Mill’s doctrine, the sanctions of state power cannot be used, I quite agree” (PL: 37 n.39). 3. Gaus argues that TJ’s liberalism was “a distinctly ‘partial’ comprehensive view” (2004: 100). 4. As Okin notes, Rawls also holds this view (PL: 199–200). 5. Okin takes the similarity between her and Nussbaum on this point to show that Nussbaum is not a purely political liberal, just as Okin is not a strictly comprehensive one. Okin places them both in a category in-between (1999b: 129). 6. This overlooks the fact that many of Mill’s arguments about the value of personal autonomy in On Liberty issue in recommendations that the state not get involved in people’s lives out of respect for this good. Nussbaum elsewhere portrays Mill’s as a reasonable comprehensive doctrine (2000c: 128).

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7. Cf. Brettschneider’s (2007: 25) claim that some of Okin’s proposals can be pursued within political liberalism. 8. Baehr (2002) provides a helpful overview of feminist liberals’ reluctance to use the state to enforce all their ideals. Cf. Anderson (2009: 131). 9. Contrast Richardson’s claim that Hampton’s “use of the idea of equal personhood is not ontological but political” (2007a: 50). 10. Mills situates Hampton’s “feminist Kantian contractarianism … as part, though not all, of a comprehensive ethic” (2007a: 89). 11. She classifies the sort of broad Enlightenment liberalism she sketches as a partially comprehensive doctrine (2007c: 152 n.2; cf. 161). 12. I say effectively because Hampton cites only Mill’s reflection that poverty can enslave people (1997a: 152), saying nothing about his discussion of domestic tyranny nor the stifling effect of social forces urging conformity. 13. Hampton describes herself as being “in complete passionate agreement with Rawls about what abortion policy a liberal state should adopt” (2007c: 177): it should not restrict abortion in the first trimester. She does not provide here, or anywhere to my knowledge, her argument in defence of this right. Instead she objects to the way Rawls dubs as unreasonable those who think differently on this matter. When Rawls revisits the abortion issue, he explains that his passage in PL did not defend a right to first-trimester abortion – it lacked the necessary argumentation for this – but simply expressed his opinion. He seems to retract any suggestion that opponents of abortion are unreasonable (IPPR: 169–70). 14. Cf. Wendell’s (1987: 82) claim that the state is not the only weapon to combat ideas and forces one dislikes; liberals can use their freedom of expression to criticize others’ freedom of expression. See also Anderson (2009: 131) for the view that unwillingness to use state power to forward a feminist agenda need not amount to complacency regarding the status quo. 15. Engaging little of the voluminous feminist scholarship on gender in the work of his social contract thinkers, Button fails to address the important question of how, or even whether, women are formed as liberal subjects. Although “the exclusion of women from the Lockean political sphere is clear” (2008: 121), Button does not examine its implications for Locke’s liberalism nor his transformative project. There is a reference to Rousseau’s exclusion of women from politics (ibid.: 200 n.84), and some feminist critiques of the canon are listed (ibid.: 226 n.51). 16. Hollie Mann and Jeff Spinner-Halev argue that Mill was highly cognizant of these questions, seeing the state’s role as central but limited, and attentive to other sources of progressive social change (2010: esp. 269). They suggest that Mill differs here from his feminist supporters, whereas I see continuity. 17. Operating in this bifocal way – looking to the state when appropriate, elsewhere when it is not – should mitigate Schwartzman’s concern that looking beyond the state denies or minimizes the political nature of women’s oppression (2009: 183–4). The feminist liberals studied here do not equate the political narrowly with “the business of the state” (Chapter 10, §4) just as the Conclusion proposes that the category “women” is for them a political one. Cf. Mann and Spinner-Halev on the possibility of having “a radical analysis of power and gender today, and yet not think[ing] the state should be solely responsible for implementing justice” (2010: 269). 18. Pauline Kleingeld (1998) provides a good model here, arguing that cultural meanings of marriage need to change or expand to include an explicit focus on justice. This involves both state action and a change in personal attitudes. 19. See Taylor (2009) on feminist themes in women’s magazines. 20. See www.walkamileinhershoes.org/ (accessed March 2011). Tristan Bridges (2010: 6,

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17, 20, 25–6) raises a number of reservations about the group’s annual marches, fearing that they inadvertently reinforce gender stereotypes and inequality. They gender feminism as a movement of, and for, women (ibid.: 21–2) and manifest some heteronormative and homophobic elements (ibid.: 10, 12, 17–18).

CONCLUSION 1. Chambers (2008) gives sustained attention to this question. 2. On the status of children in feminist liberalism, see Cornell (2005: 35). O’Neill has been heavily influenced by the liberal tradition and pays serious attention to children (see 1988). Tubbs (2007) is fiercely critical of the way liberal political theorists have ignored children’s needs. Yet his depiction of liberalism, and in particular of Okin, is so jaundiced that his criticisms frequently miss their mark. Nor does he acknowledge that liberalism could address this issue other than by according children rights. 3. One of the grounds on which Nussbaum criticizes Butler’s work is that it does nothing for those who suffer (1999e: 45). 4. MacKinnon (2010: 506–7) also insists on the continuing salience of gender as a category. Echoing Okin’s references to the end or abolition of gender, she maintains that when the equation of women with sex ends, and when that sex is no longer seen to be for sale, gender equality will have been achieved and women will finally become human. 5 Okin (WWPT: 342 n.32) makes a reference to Beauvoir that is connected to a point about freedom from necessity (ibid.: 298). Beauvoir’s claim that one is not born but rather becomes a woman is quoted on the book’s back cover. She is named three times in Okin (JGF: 61, 67 n., 106), with the last reference also quoting this famous line. MacKinnon might be the conduit for Beauvoir’s ideas to feminist liberalism. Despite being mentioned only once, Beauvoir also exercises a powerful influence on Friedan’s The Feminine Mystique. 6. Apart from Beauvoir, Butler gives no examples of feminist theorists who assume that women’s bodily experiences are uninterpreted and pre-discursive. I am not sure that this is true of Beauvoir, and doubt that even Wollstonecraft would fit this description, given her acute awareness of the social construction of motherhood. 7. But see Harpham (2002: 73) on the ways in which Nussbaum’s views on the social construction of sex, sexuality and sexual desire parallel Butler’s. 8. Recall that an attractive feature for Nussbaum of the HCA was its ability to introduce discernment among individuals based on different needs (Chapter 9, §1). 9. As I read them, the feminist liberals studied here would endorse MacKinnon’s insistence that “it is the way society punishes women for reproduction that creates women’s problems with reproduction, not reproduction itself ” (1991). 10. Nussbaum (1999f: 31) finds some warrant for attention to material conditions in the work of Rawls. Okin and Hampton have also been influenced by Marx – Okin in the idea of the human potential for a wide range of activities (Chapter 3, §6) and Hampton in the recognition of social sources of exploitation – namely, on threats to individual liberty and equality that do not emanate from the state (Hampton 1997a: 192).

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INDEX

Abbey, Ruth 6, 7, 9, 278n9, 280n4, 285n14, 302n1, 303n13, 304n1 abortion 6, 13, 26, 198, 200, 258, 283n24, 299n17, 305n13 abstraction 4, 7, 16–17, 20, 67, 101, 127, 138–45, 147–8, 218, 222–3, 291–2n6 Ackerly, Brooke 112, 171, 173, 182, 289n10 adaptive preferences 4, 65, 86, 97, 105–6, 113, 116, 165, 174–83, 185–6, 189, 266, 295n1, 296nn15, 19, 297nn20, 22, 26, 303n12 Adams, Abigail 47 agency Hampton on 147 Nussbaum on 159, 163, 170, 175, 186, 196 Okin on 93, 96–7, 100, 110–11, 113, 165, 287n21 Alcoff, Linda 274 Al-Hibri, Azizah Y. 88, 95 Allen, Anita 53–4, 200–201, 283n23 Allen, Johnathan 283n34 Anderson, Elizabeth 301nn12, 19, 305nn8, 14 An-Na’im, Abdullahi 88, 90 Anthony, Susan B. 1 Aristotle in Nussbaum 152–7, 164, 172, 234, 243, 245, 292n4, 293n12, 296n18, 297n24 in Okin 22–3, 279n1, 280n3, 284n2 Arneil, Barbara 93, 285n4, 286n13 Arneson, Richard 36, 282–3n18, 293n14 Audard, Catherine 292n5

autonomy in Hampton 256, 291n2 in Kant 130 in liberalism 1, 15, 18–19, 178, 185, 214, 224, 253, 296n11 in Mill 244, 304n6 in Nussbaum 155, 194, 199–201, 234–5, 237, 239, 293n14, 303n14 in Okin 54, 85, 250–52 in Rawls 249, 304n22 for women 7, 20, 182, 210, 220 Baehr, Amy 5, 9, 10, 13, 46, 56, 63–4, 72, 257, 276, 278n1, 284n2, 305n8 Barclay, Linda 232–6, 240, 303n13, 304n21 Barry, Brian 280n9 basic structure, the 5, 62–5, 73, 75–7, 228–9, 232, 239, 244, 246, 250, 255, 302n4–7 Beard, Mary 184, 297n31 Beauvoir, Simone de 10, 270, 278n3, 306n5–6 Benhabib, Seyla 71–2, 94, 116, 287n20 Berkowitz, Peter 72, 84, 89, 94 Bhabha, Homi 90, 95 Binion, Gayle 281n15 biological differences 25–6, 55–6, 68, 124, 136, 190, 271–4, 290n8, see also sex/ gender distinction Bojer, Hilda 284n1, 285n13 Botting, Eileen Hunt 277n1, 278n9 Brake, Elizabeth 6, 225, 248, 250, 277n9, 285n23 Brennan, Samantha 7, 18, 279n18, 285n13

321

INDEX

Brettschneider, Corey 302n1, 305n7 Bridges, Tristan 305–6n20 Bronte, Charlotte 143 Brown, Chris 265 Brown, Wendy 278n4 Brukamp, Kirsten 293n10, 294nn22, 27 Butler, Judith 184, 271–4, 278n4, 282n11, 283n26, 295n34, 296n11, 297n27, 306nn3, 6–7 Button, Mark 4, 261, 305n15 Callan, Eamon 304n2 care, ethic of debate 2, 10, 17–18, 287n30, 290n10, 291n6, 299n15 in feminist liberalism 217–18 in Hampton 3, 17–18, 120, 125–8, 132–3, 143 and Michelle Obama 264–5 in Nussbaum 4, 149, 177, 188–98, 299n14 in Okin 67–8 see also Gilligan; Kittay Carey, Christine 277n1 Carver, Terrell 278–9n11 Catsouris, Nikki 201, 300n20 Chambers, Clare 6, 16, 225, 230, 263, 285n15, 294n23, 297n26, 300n22, 301n14, 303nn12, 14, 306n1 Charlesworth, Hilary 285n4, 293n16 Chodorow, Nancy 34, 38–9, 278n15, 281n25, 292n11 Cohen, Gerry 269 Cohen, Joshua 32, 36, 48, 54, 89, 91, 168, 253–4, 281nn15, 24, 281–2n2, 282nn8, 16 Collins, Patricia Hill 99–100, 281n24, 287n30, 288n33–5, 292n9, 298n5 consciousness-raising 127, 141–2, 175, 183, 185, 209, 261, 270, 297n29 contractarian(ism) accidental contractarian 3, 128–33 feminist contractarianism 5, 120–25, 127, 134–6, 139–40, 183, 209, 270, 305n10 individualism in 143 Rawls and 290n14 Cornell, Drucilla 10, 225, 277n9, 285n23, 306n2 Crenshaw, Kimberle 99, 281n19, 287n31, 288n33

322

Cudd, Ann 128 Dailey, Anne 277n8, 287–8n32 Darwall, Stephen 128 Deveaux, Monique 85, 90–91, 93, 116, 171, 173, 176, 182, 187, 249, 285n4, 287n28, 289n15, 293n15, 303n14 Dixie Chicks, the 264 domestic division of labour, the in Hampton 126, 134, 212 in Mill 43 in Nussbaum 192, 202 in Okin 3, 22, 29, 32–3, 36–7, 39, 49, 51, 63, 75, 114, 250, 253, 282nn17–18, 284n10 in Rawls 76, 78–9, 81, 220 domestic violence 8, 13, 52, 90, 98, 137, 141, 145, 163, 194, 203, 212–13, 216, 237, 268, 287n31, 291n1, 295n31, 297n28 Dostoyevsky, Fyodor 143 Dreben, Burton 46 Dworkin, Andrea 19, 200, 203–4, 216, 259, 279n19, 300n22, 301nn10, 14 Dworkin, Ronald 279n13, 280n9 Eisenberg, Avigail 296n11 Eisenstein, Zillah 1, 8, 10–11, 15–16, 19, 20, 23, 209–11, 214, 277n4, 278nn2–3, 279nn12–13, 301n11 Eliot, George 143 Ellwood, David 254 Elshtain, Jean Bethke 23, 253, 280n3, 283n19, 284n5 empathy 34, 36–7, 65–72, 217, 284n6 English, Jane 62, 220, 284nn7–8 Enloe, Cynthia 7 family as the first school of moral development in Mill 13, 24, 211, 219, 267 in Nussbaum 192–3, 211, 239, 298n4, 299n14 in Okin 3, 22, 24, 34–7, 104, 211, 281n18 in Rawls 62, 68–73, 76, 81 in Wollstonecraft 13 Feinberg, Joel 143 female genital mutilation (FGM) 160, 162, 168, 294n24, 297n21 Fineman, Martha 32, 278n8

INDEX

Flax, Jane 103, 107–15, 229–30, 288nn4– 5, 289n6, 293n10, 303n9 Frazer, Elizabeth 284n8, 286nn10, 16 Freeman, Samuel 187, 228–9, 240–41, 293n15, 298n8, 302n6, 304n25 Friedan, Betty 2, 277n4, 306n5 Friedman, Marilyn 251–2 Freud, Sigmund 71 Fricker, Miranda 184, 297n28, 31 functional view of women 23–5, 39–40, 44, 48, 84, 103, 154, 211 Gatens, Moira 301n17 Gaus, Gerald 303n13, 304n3 Gauthier, David 143 Gilligan, Carol 10, 17, 68, 127–8, 279nn14–15, 284n4, 287n30, 290n12 Gilman, Sander 92 group rights Hampton on 145 Nussbaum on 165–7 Okin on 51, 83–97, 102, 104, 116– 17, 165–6, 170, 212, 286nn9, 11, 287nn28–9, 289n15 Habermas, Jurgen 5 Harpham, Geoffrey 152, 292n2, 306n7 Harris, Angela 98, 147, 287n31 Hartley, Christie 302n1 Held, Virginia 121, 131–2, 142 Hirschman, Albert 97 Hirschmann, Nancy 7, 10, 12, 14, 17–18, 20, 208, 277n3, 278nn14–15, 280n3, 282n4, 287n27, 290n15, 291n9, 301n11 Hobbes, Thomas 43, 128–30, 132, 219, 254, 290n15, 291n1, 301n11 Honig, Bonnie 90–93 hooks, bell 39, 281n19 Humboldt, Wilhelm von 303n17 Hurston, Zora Neale 143, 148 ideal theory 61, 209, 221–4, 300n3, 302n20 individuals as ends in themselves see moral individualism intersectionality debate in Hampton 138–9, 144–9 in Nussbaum 164–5, 216–17 in Okin 3, 37–41, 83, 97–102, 104–5, 107–8, 111, 216, 281n19, 288n33

relevance for feminist liberalism 4, 6–7, 101, 165, 269 Jaggar, Alison on feminist thought 7, 143 on liberalism 1, 10, 14, 17, 20, 278nn1–3 on Nussbaum 171–3, 176–7, 182, 295n30, 296nn16–17, 297n23 on Okin 32, 38–9, 54, 94, 111, 254, 282n2, 285n4, 289n13 Jeffries, Alison 7 Kamm, Frances 133, 135, 140, 142, 145, 289n2, 290n16 Kamtekar, Rachana 230, 302n8, 303n14 Kant, Immanuel and comprehensive liberalism 248, 304n2 and contractarianism 128–9, 132, 290n 14 in Hampton 3, 5, 130–31, 134–44, 149, 218, 290, 291n20, 305n10 and moral individualism 219, 270 and moral reasoning 17, 67 in Nussbaum 153, 155, 157, 175, 186, 195–6, 234, 293n17, 296n11 in Pateman 221 Kaufman, Cynthia 88–9, 91, 95 Kearns, Deborah 284n7 Kensinger, Loretta 6, 277n4, 278n13 Kierkegaard, Soren 291n18 Kiss, Elizabeth 17, 277n11 Kittay, Eva 10, 18, 195, 197, 299nn12–13 Kleingeld, Pauline 305n18 Kohlberg, Lawrence 17 Kymlicka, Will 27, 32–3, 42, 84, 86, 91, 167, 285nn2–3, 286n5 Levey, Ann 63, 178–82, 297nn20, 22, 26 Lincoln, Abraham 73 Lloyd, Genevieve 23 Lloyd, Sharon 63, 76, 79–80 Locke, John 1, 11, 43, 143, 277n3, 280n3, 305n15 Lovett, Frank 286n13 Lukes, Steven 280n9 Macedo, Stephen 57 MacIntyre, Alasdair 27, 47, 153

323

INDEX

MacKinnon, Catharine category of women 267, 306n4 feminism unmodified 277n12 forced pregnancy 273 invisible masculine norm 14–15, 17, 213 on liberalism 15–16, 20, 211, 214, 279nn13, 21, 301nn9–10, 16 Nussbaum on 301nn10, 14 pornography 8, 19, 203–4, 215–16, 259, 300nn21–3, 301n8 privacy 200, 299n18 prostitution 8 reproduction 306n9 sexism untrue 141, 238 sexual harassment 215–16 women’s rights as human rights 213–14 Mann, Hollie 304n1, 305nn16–17 Mansbridge, Jane 275–6 Marx, Karl 16, 19, 59–60, 157, 275, 283nn32–3, 293n11, 306n10 Marxist feminism 8, 278n4 McClain, Linda 72, 76, 200, 215, 225, 277n9, 279n16, 283n23, 284n4, 290n12 McKenzie, Julie 297n27, 30 Metz, Tamara 225, 278n8, 283n23 Mill, James 43 Mill, John Stuart adaptive preferences 175 agnostic about women’s nature 57, 68, 190 authenticity 233–4, 237 autonomy 233, 235, 253 comprehensive liberalism 248, 253, 304n1 early feminist liberal 1, 22–3, 42–4, 47, 148, 282n4 family as the first school of moral development 13, 24, 34, 81, 192–3, 211, 219, 239, 267, 298n4, 299n14 full development of personality 54, 59–60, 282n5 harm principle 161, 203, 228, 300n21 higher goods 183 individualism 215, 233 religion 236–7, 287n23, 303nn15–16, 19 state intervention 263, 305n16 threats to liberty 258–9, 305n12

324

Mills, Charles 209, 223–4, 278n15, 283n28, 291n5, 302nn21, 23, 305n10 Milton, John 143 Minow, Martha 13, 278n7 Mohanty, Chandra 109, 114 moral individualism in feminist liberalism 5, 167, 203, 212–15, 217, 224, 265, 268–71, 301n12 in Hampton 126–9, 132, 143–5, 147, 209, 219, 259 in liberalism 9, 13, 221, 223–4 in Nussbaum 149, 153, 155, 157, 163–4, 166–9, 183–6, 189–90, 192–3, 195, 198, 246, 295n1, 301n13 in Okin 44, 48, 53, 84–5, 89, 101–3, 111, 118 in Rawls 67, 219, 223 see also Kant multiculturalism 3, 41, 83–95, 116–17, 145, 285n2, 286nn8, 12,13 multiple realizability (the HCA) 177, 193, 228, 263, 295n33 Narayan, Uma 287nn17, 20 Nedelsky, Jennifer 17, 19 Nicholson, Linda 272, 274 Nietzsche, Friedrich 133, 291n18 Norton, Anne 88–92, 95, 171, 296n17 Nozick, Robert 27 Obama, Barack 264 Obama, Michelle 264–5 O’Grady, Helen 290n12 Olsen, Frances 10, 12, 283n20 O’Neill, Onora 306n2 original position (OP) 5, 62–3, 65–7, 71–2, 106, 121, 127, 183, 195, 209, 220, 221, 270, 290n11, 304n23 overlapping consensus 74, 229–30, 239–40, 245–7 Papanek, Hanna 286n6 Pateman, Carole critic of liberalism 10, 13, 200, 209, 211, 219–21, 275–6, 278nn2–3, 279n13 on feminist as an anachronism 277n2 on individualism 301n11 on Locke 277n3 reply by Hampton 131

INDEX

reply by Okin 210 sexual contract, the 2, 10–12, 209–10 perfectionist/perfectionism 60, 159, 183, 250, 256, 293n15 Phillips, Anne on liberalism 1, 300n2 on Nussbaum 176, 184, 296nn9, 14–15, 293n14, 296n9 on Okin 93–5, 282nn8,15, 285n4, 286n8, 287n29 on Rawls 4–5, 300n5 on self-interpretations 288n36 Pitkin, Hannah 23 Plato 22–3, 25, 57, 155, 280n3, 296n18 Pollitt, Katha 89 popular culture 264–5 pornography 8, 19, 203–4, 215–16, 222, 259, 300n23; see also MacKinnon privacy (as a liberal value) 3, 8, 33, 52–4, 60, 135, 188, 198–202, 266, 280n12 prostitution 8, 204–5, 259, 300nn24–5, 301n8 public/private separation and the family 262–3 feminist critique of 2, 10–14, 210–13 in feminist liberalism 9 in Hampton 121, 134–5 in Nussbaum 188, 194, 196–8, 200, 202–3 in Okin 22, 24, 33, 53–4, 86, 104, 109, 118, 283n21 in radical liberalism 275–6 in Rawls 63, 73, 76–8 see also privacy) Putnam, Ruth Anna 38, 45 Radzik, Linda 122, 135, 290nn5, 7, 9, 16 rape and intersectionality 287n31 for feminist liberals 216, 267–8, 271, 273–4 in Hampton 134, 137–9, 141, 144–5, 147, 212, 222, 259, 291n3 in MacKinnon 214, 279n20 marital 13, 52, 194, 237, 297n28 in Nussbaum 163, 168, 203, 295n31, 297n28 in Okin 85, 95, 98 and rights 14 Rapport, Sara 32, 35, 36, 38–9, 65–6, 281n15, 284n3

Raz, Joseph 253, 286n11 Redding, Otis 264 Rhode, Deborah 8, 13 Richardson, Janice 125, 127–8, 140, 289n2, 291n17, 305n9 rights feminist critique of 12, 14, 17, 19-20, 23, 127-8, 277n11, 279n16 liberal 4, 47, 77–8, 178, 224 for Nussbaum 177, 187, 198, 211, 235, 241, 244, 275, 302n6, 304n27 Rawls on 77–8, 80, 156, 285n18 Taylor on 245–7 women’s rights as human rights 112, 117–18, 213–14, 301nn8–9 see also group rights Rihanna 265 Rosenblum, Nancy 36, 50, 54, 58, 60, 250, 253, 275, 280n5, 281n1, 282nn9– 10,16, 283nn18, 29, 31, 34 Rousseau, Jean-Jacques 22, 23, 143, 280n3, 305n15 Russell, J. S. 56, 65–6, 72, 282n3, 284n2–3 Sample, Ruth 125, 134, 290nn5, 13, 16 Sandel, Michael 27 Schaeffer, Denise 6, 9–10, 19, 215, 279n21, 300n21 Schochet, Gordon 277n3 Schwartzman, Lisa 7, 10, 16–17, 20, 209, 215–16, 220–23, 278nn1, 4, 279n13, 291n5, 296n11, 297n29, 300n23, 301nn9, 12, 302n21, 305n17 Schwarzenbach, Sybil 12, 14, 278n10, 280n10, 282n7, 299n15, 302n24 Schweder, Richard 294n24 See, Kathleen O’Sullivan 45, 282n6 self-interpretations/self-understandings in Hampton 139, 141 in Nussbaum 164–6, 170–73, 182, 186, 245 in Okin 3, 41, 83, 95, 98–107, 109, 111–16, 166, 288n33 relevance for feminist liberalism 265, 270–71 relevance for Rawlsian approaches to justice 269 Sen, Amartya 156–7, 292n9 sex/gender distinction, the 55–8, 271–4, see also biological differences

325

INDEX

sexual harassment 14, 139, 163, 185, 215–16, 220, 268, 271, 295n31 Shachar, Ayelet 93, 285nn2, 4, 286n13, 287nn20–21, 25, 289n15 Shakespeare, William 143 Shanley, Mary Lyndon 13, 58, 253, 277n3, 278nn7–8, 279n1, 280n3, 283nn25, 27, 33 shared meanings/understandings 3, 42, 45–8, 52, 54, 83–95, 101–3, 106, 116, 140–41, 166 Slote, Michael 191–2, 298n3 Smart, Carol 14 Smith, Adam 175 Smith, Andrew 72, 285n25 Song, Sarah 91–2, 116, 285n2, 287nn21, 29 Spelman, Elizabeth 37–40, 55, 98–9, 104–5, 107, 281nn19, 21, 23, 288n37, 292n11 Spinner-Halev, Jeff 95–6, 285n2, 287nn24, 26, 304n1, 305nn16–17 Squires, Judith 72, 279n14 Stanton, Elizabeth Cady 1 Stark, Cynthia 291n6 Stevens, Jacqueline 12 Sunstein, Cass 185 tacit consent 83, 95–7 Taylor, Charles 100, 227, 245–7, 293n13 Taylor, Harriet 1, 43 Tolstoy, Leo 193 Tomasi, John 254–5

326

transformative liberalism 4, 261–5, 305n15 Tronto, Joan 17, 24, 126, 280n8, 283n33, 290n12 Tubbs, David 72, 280nn6–7, 306n2 Tully, James 222 utilitarianism 121, 290n14 vulnerability by marriage 22, 28–31, 37, 41, 52, 81, 253, 267 Walsh, Mary 277n3 Walzer, Michael 3, 22, 27, 42, 46–8, 106–7, 114–15, 140, 282nn12, 13, 286n7, 287n22, 289n11 Watson, Lori 250, 302n1 Weinbaum, Alys Eve 89–91 Wendell, Susan 5–6, 215, 292n3, 301n6, 305n14 Wijze, Stephen de 63, 284n8, 302n1 Wingrove, Elizabeth 116, 282n2, 288n5, 302n25 Wollstonecraft, Mary 1, 13, 47, 55, 221, 272, 278n9, 280n4, 306n6 World Institute for Development Economics Research (WIDER) 152, 292n2 Yoshino, Kenji 261–2 Young, Iris Marion 16, 45, 169, 184, 255, 267–8, 281n27, 288n3, 289n6 Yuracko, Kimberly 13, 50, 279n19