Sex, Culture, and Justice: The Limits of Choice (10 page)

1. Martha Nussbaum gives many examples of countries where women are forbidden to work for religious reasons, even if such women and their families are destitute as a result (
   Sex and Social Justice,
   93–94).
   

2. In
   Pascalian Meditations,
   Bourdieu argues that our habitus is adjusted to our occupa- tional field even before we enter that field, by processes of socialization and preparation that occur in the family and in school. Thus, for Bourdieu, ‘‘when we deliberate on entry into the game, the die is already more or less cast’’ (
   Pascalian Meditations,
   11). Such a process cannot apply to cases such as a woman’s economically prompted move into a nonfeminine sphere, however, for the unexpectedness and hitherto inappropriateness of such a move means that there has been no prior familial or educational preparation. The deliberation on entry, then, will be genuinely meaningful for the deliberator.
   

   gender
   would be affected. As I argued earlier, the gendered habitus is not situated in any particular field for Bourdieu. Instead, gender norms are replicated across all fields, in nonidentical but nevertheless rein- forcing ways. It follows that a woman entering a previously nonfemi- nine sphere may find aspects of her habitus altered, but its gendered- ness will remain intact.
   

   A good example of the pervasiveness of masculine domination de- spite social mobility is found in Heather Dryburgh’s analysis of women in engineering. Dryburgh studied a group of women entering the male-dominated profession, and followed their progress through col- lege. Although their colleagues were also students, and so were not yet fully indoctrinated into the engineering culture, still that field’s gender norms were strongly enforced. The presence of the women students appeared not to question those norms but further to entrench them. Dryburgh argues, ‘‘As women progress through their professional training, they are making adjustments and learning to manage the masculine culture into which they are entering. . . . [T]his study shows that the educational phase is a period of early socialization into the masculine workplace culture associated with engineering. Women who do make it through the training process . . . face sexism in the work- place that requires new adaptations and strategies.’’
   81
   The implication of Dryburgh’s account is that, while female engineering students do experience a disjunction between habitus and field leading to alter- ations in habitus (‘‘adaptations and strategies’’), those alterations do not in any way undermine gender, or masculine domination. Instead, the sexism which they encounter reinforces the salience of gender.
   82
   

   The example of women in engineering supports the claim that if the gendered habitus is reinforced in all fields, it cannot be significantly undermined by mobility across fields. This may explain the peculiarly pessimistic and deterministic tone of
   Masculine Domination
   as com- pared to Bourdieu’s other work: the gendered habitus is even less sus- ceptible to change than is the habitus more generally (and more spe- cifically), for it survives transition between fields. It follows that, as gender is transmitted throughout society, it must be countered by a coordinated program of change in such institutions and in wider social norms. We need a proactive, and proactively normative, program of
   

3. Heather Dryburgh, ‘‘Work Hard, Play Hard,’’ 665.
   

4. See also Lovell, ‘‘Thinking Feminism,’’ 13.
   

   change, reinforced in the social and state institutions that perpetuate masculine domination.
   

   The Role of the State
   

   Theory and consciousness-raising may be the first step toward emanci- patory and egalitarian change, but state action must follow. In Part Two, I develop a proposal for state action to remedy inequality. Here, I use MacKinnon’s account of the state to illustrate the ways in which the state can be a tool for feminist action.
   

   At first glance, looking to the state as an emancipator appears un- wise or even impossible. After all, if masculine domination and other forms of socially constructed inequalities are transmitted in ‘‘agencies such as the school and the state,’’
   83
   the state must be understood as part of the problem rather than part of the solution. Hence the state is sometimes seen, for example in some versions of Marxism, as ‘‘a tool of dominance and repression’’ that must be abandoned by any egalitar- ian movement.
   84
   This idea stands in stark contrast to a more optimistic, perhaps liberal view of the state as ‘‘potentially principled . . . available as a tool that is not fatally twisted.’’
   85
   Between these two extremes, MacKinnon notes, feminism has traditionally been stranded: ‘‘Either the state is a primary tool of women’s betterment and status transfor- mation, without analysis (hence strategy) of it as male; or women are left to civil society, which for women has more closely resembled a state of nature.’’
   86
   

   It is beyond the scope of this book to deal with these issues in depth. However, several points are worth noting. The first is that it is possible to advocate the radical transformation and use of the state as a weapon in the feminist struggle while remaining aware of the state’s role in perpetuating patriarchy. MacKinnon combines both, as I hope to do here. Starting with the critique of the state, she writes:
   

   From a feminist perspective, male supremacist jurisprudence erects qualities valued from the male point of view as stan- dards for the proper and actual relation between life and law.
   

5. Bourdieu,
   Masculine Domination
   , 4.
   

6. MacKinnon,
   Toward a Feminist Theory of the State,
   160.
   

7. Ibid.
   

8. Ibid.
   

. . . Lines of precedent fully developed before women were permitted to vote, continued while women were not allowed to learn to read and write, sustained under a reign of sexual terror and abasement and silence and misrepresentation continuing to the present day are considered valid bases for defeating ‘‘un- precedented’’ interpretations or initiatives from women’s point of view.
87

MacKinnon’s work is full of examples, mostly from U.S. case history, of state perpetuation of gender inequality through the formation and enforcement of law. She does not have a utopian vision of an autono- mous, virtuous state standing above society. Awareness of the state’s role in maintaining the unequal status quo does not, however, preclude use of the state for emancipatory purposes. Indeed, if the state is one of the structures that maintain inequality, how could an egalitarian movement afford to ignore it? If the state is implicated in the social construction of inequality, it will be impossible to undermine that in- equality without addressing the state and developing strategies to change it. It will be essential to use state power in the name of equality rather than patriarchy. The fundamental feminist idea that the per- sonal is political expresses, in part, this understanding. It is because the state already shapes the personal, and gender inequality more widely, that it is appropriate to use the state to tackle gender inequality. Thus feminists reject what MacKinnon calls ‘‘the liberal view’’ of the private, according to which ‘‘no act of the state contributes to shaping its internal alignments or distributing its internal forces, so no act of the state should participate in changing it.’’
88
Instead, since the state already shapes the personal, it is crucial to propose ways of reforming the state to render it compatible with equality. Even a state that is tradi- tionally male-dominated and biased
can
develop laws that promote women’s equality.
89
Indeed, since the law
inevitably
has a concrete, sub- stantive effect, one that promotes some interests and groups and disad- vantages others, it is crucial for any normative project to engage with the law and consider how it might produce substantive effects that are normatively justifiable. As MacKinnon puts this point, ‘‘If it was openly conceded that law qua law is on some level necessarily a substantive

87. Ibid.
,
238.

88. Ibid.
,
190.

1. Catharine MacKinnon,
   Women’s Lives, Men’s Laws,
   268.
   

   pursuit, as women’s engagement with it shows, not mechanistic or scientific or abstract or finally formal, its functionaries and decision makers could less easily hide and legitimate what they do and its levers of power could be more widely shared.’’
   90
   

   The first reason why social construction leads us to conceive of the state as a tool for change, then, is that the state is already involved. It cannot be ignored, and so must be reformed. The second reason is that analysis in terms of social construction highlights the fact that formal liberal freedoms embodied in state
   non
   intervention do not truly eman- cipate. Formal freedoms do not affect individuals’ socially constructed preferences, beliefs, and habituses, and thus do not ensure that individ- uals have the internal resources to secure their own equality—or even their own freedom; as Taylor argues, ‘‘If we think of freedom as includ- ing something like the freedom of self-fulfillment, or self-realization according to our own pattern, then we plainly have something which can fail for inner reasons as well as because of external obstacles.’’
   91
   Moreover, insisting on nonintervention deprives individuals of the nec- essary
   external
   resources for emancipation. This point is familiar to the liberal debate about negative and positive liberty—noninterference leaves some individuals unable to act in accordance with their own life plans since they lack the necessary material resources.
   92
   MacKinnon’s example is of the right to abortion, secured in the United States via the constitutional right to privacy in
   Roe v. Wade.
   Although the right to an abortion is essential to women’s equality, MacKinnon points out that rooting it in the right to privacy has the effect that state institutions consider themselves to be under no obligation to provide the means for women to obtain an abortion. As a result, women without adequate funds or access to doctors who are willing to perform abortions remain unable to exercise their right. This example demonstrates the general point that state action is often necessary to provide genuine equality:
   

   Freedom from public intervention coexists uneasily with any right that requires social preconditions to be meaningfully de- livered. For example, if inequality is socially pervasive and en- forced, equality will require intervention, not abdication, to be
   

2. Ibid.
   ,
   9.
   

3. Taylor, ‘‘What’s Wrong with Negative Liberty,’’ 212.
   

4. G. A. Cohen, ‘‘Capitalism, Freedom and the Proletariat.’’ See also Cass Sunstein, ‘‘Neutrality in Constitutional Law,’’ 9.
   

   meaningful. . . . [Without intervention] women are guaranteed by the public no more than what they can get in private. . . . State intervention would have provided a choice women did not have in private, would have contradicted the male-suprem- acist structure of the private.
   93
   

   This combination of reasons leads Nancy Hirschmann to conclude that state nonintervention can actually be more harmful to those who are subordinated than state intervention. ‘‘From the perspective of the powerless,’’ she writes, ‘‘the state often intervenes most intrusively and egregiously precisely when it claims to be doing the contrary, such as when, under the rubric of privacy, its failure to arrest and prosecute domestic abusers results in the restriction of women’s freedom.’’
   94
   

   Cass Sunstein persuasively argues that the dominant legal under- standing of state neutrality leads to a conceptually and normatively flawed view of the appropriateness of state action. This dominant view begins with a concealed substantive understanding of what it means for the state to act at all: ‘‘Decisions that upset existing distributions are treated as ‘action’; decisions that do not are thought to stay close to nature and thus to amount to no action at all.’’
   95
   In fact, all laws amount to action, and what tends to be understood as neutral and thus permis- sible state action is in fact simply that which rests on, and perpetuates, the status quo and prevailing social norms. For example, Sunstein ar- gues that the Supreme Court’s ruling that Andrea Dworkin and MacK- innon’s antipornography ordinances were non-neutral and thus uncon- stitutional is inconsistent with many permitted regulations of speech, such as state prohibition of truthful cigarette advertisements but not truthful antismoking campaigns.
   96
   Sunstein concludes that ‘‘the pre- vailing conception of neutrality’’ and its concurrent hostility to the sorts of state action advocated in this book ‘‘often operates as a device for ruling out of bounds, as impermissibly partisan, views that see existing distributions of entitlements, wealth, and preferences as partisan and
   

5. MacKinnon,
   Toward a Feminist Theory of the State,
   191–92. While she agrees with MacKinnon’s argument that the right to abortion requires state provision if it is to be mean- ingful, Jean Cohen argues that it is the liberal paradigm of privacy and not the concept of privacy
   per se
   that implies state nonintervention. See Jean Cohen,
   Regulating Intimacy
   , 28–44.
   

6. Nancy Hirschmann,
   The Subject of Liberty
   , 235; see also Cohen,
   Regulating Intimacy
   , 7.
   

7. Sunstein, ‘‘Neutrality in Constitutional Law,’’ 2.
   

96. Ibid., 28.

a product of law.’’
97
Instead, we should acknowledge that the state inevi- tably prioritizes some normative views and ways of life, and must thus theorize which priorities are preferable.

Jean Cohen also recognizes the need to develop an appropriate model of state action in the private or intimate domain, rather than dismiss the state as a purely repressive force. As I do, she criticizes what she terms the liberal paradigm of state action, according to which ‘‘the state should limit itself to guaranteeing the negative liberty of each to pursue their particular conception of the good.’’
98
However, she is equally critical of the alternative welfare paradigm, according to which ‘‘positive state action is needed to counter injustice due to inequalities of power and status between social groups.’’
99
The welfare paradigm is problematic, according to Cohen, because it is ‘‘intrusive, substantive, and authoritative.’’
100
In its place, she supports the reflexive paradigm. In contrast to the restrictiveness of the welfare paradigm, the reflexive paradigm encourages ‘‘responsible self-regulation’’ in which ‘‘social actors can strike whatever substantive agreements they wish.’’
101
How- ever, in order to avoid the sociological naivete´ of the liberal paradigm,
102
and since reflexivity in itself can have either good or bad effects,
103
self- regulation must be
constrained
by the state. Thus Cohen claims that ‘‘regulating self-regulation to ensure that it is guided by the principles of justice can avoid the dilemmas plaguing the other two legal para- digms.’’
104