Sex, Culture, and Justice: The Limits of Choice (11 page)

This paradigm suffers from an internal contradiction that Cohen recognizes but does not adequately resolve. She notes that it is ‘‘para- doxical to claim simultaneously that reflexive law fosters self-regulation by leaving outcomes indeterminate and that reflexive law should be better institutionalized so that it rests on clearly defined legislative goals with real sanctions backing them up,’’
105
and her solution of dis- tinguishing principles from goals is not adequate. It remains necessary for the state to develop substantive normative principles, to monitor

97. Ibid., 48.

1. Cohen,
   Regulating Intimacy
   , 143.
   

2. Ibid.
   

100. Ibid., 144.

1. Ibid.
   

2. Ibid., 118ff.
   

103. Ibid., 146, 164ff.

104. Ibid., 145.

105. Ibid., 177.

the extent to which nonstate institutions embody those principles, and to enforce compliance where necessary.
106
Even if diversity in practical policy solutions is permitted, the state retains a crucial, normatively significant role.

Hirschmann argues, however, that feminists still need to be cau- tious about state power, for there are many ways in which it is used ‘‘against women’s freedom.’’
107
She cites as an example Drucilla Cor- nell’s argument that laws against pornography and prostitution ‘‘merely replicate obviously sexist uses of the state, such as regulation of abortion.’’
108
Similar claims have been made about the antipornogra- phy laws advocated by MacKinnon and Dworkin, namely that these ordinances were supported by antifeminist right-wing groups, and that they would have been used to censor feminist work such as that of Dworkin herself. Both claims have been denied by Dworkin and Mac- Kinnon.
109

These issues combine empirical questions about the particular forms of state power or particular laws with a normative question about coalition. It is not clear whether it is a significant or decisive objection to a policy proposal that it can be supported by people with diverse, even opposing political positions. Many forms of democratic theory— including Rawls’s idea of the overlapping consensus, most versions of deliberative democracy, and Sunstein’s formula of incompletely theo- rized agreements—see the possibility of convergence as a strength rather than a weakness.
110
It certainly does not seem obvious that we should dismiss a policy purely because it has surprising supporters, or that we should dismiss an entire mechanism for change (the state) simply because it has been used for ill as well as for good. If we find ourselves advocating a policy that is also supported by those we pre- viously thought were our enemies, it is advisable to consider whether the policy has drawbacks or implications we had not previously thought

106. Ibid., 73, 84, 115, 169, 173, 176.

1. Hirschmann,
   Subject of Liberty
   , 235.
   

2. Ibid., 234, referring to Cornell,
   At the Heart of Freedom.
   See also the discussion of sexual harassment law in Cohen,
   Regulating Intimacy
   , 137.
   

3. See the transcripts of the Andrea Dworkin Commemorative Conference, available at
   http://social-justice.politics.ox.ac.uk/events/dworkin/ and the Andrea Dworkin website Myth Buster, at http://www.andreadworkin.net/.
   

4. At the Andrea Dworkin Commemorative Conference, radical feminist Sheila Jeffreys reported her surprise and at least partial discomfort at finding that her views on transsexu- alism cohere with those of Conservative Peer Norman Tebbit. See
   http://social-justice.poli tics.ox.ac.uk/events/dworkin/.
   

   of, but then again it is always possible that we might be incorrect in our assumption that there can be no common ground between ‘‘us’’ and ‘‘them.’’
   111
   

   A similar issue arising from the idea of emancipatory state action is the question of how to secure support for such action in the democratic process and how, on a micro level, to shift state institutions onto a different path. This is not an issue with which I am primarily con- cerned here. I am engaged in ideal theory at the level of state action: I propose paths that the state
   ought
   to take without specifying how to ensure that those paths are in fact taken. The fact that the state may be an unwilling tool of feminism emphasizes rather than undermines the need to address and utilize it.
   

   A more pressing problem is the question of whether state interven- tion will actually be effective. An argument to the effect that a practice can legitimately be banned, for example, does not in itself demonstrate that banning will be an effective means of eradicating the practice. Gerry Mackie argues that state responses to female genital mutilation (
   fgm
   ) should vary depending on the character of the society concerned. While prohibition might be the appropriate measure in liberal states where the practice is not entrenched, premature prohibition in socie- ties where it is widespread can actually be harmful. Possible harms include the fact that the practice will be driven underground and be- come more dangerous, that people will be unwilling to seek medical help when it is needed, that education programs will be hampered by people’s unwillingness to talk candidly about an illegal practice, that voluntary communal declarations to desist will similarly be hampered, and that prohibiting a widespread practice can breed resentment and even entrench support for the practice as a form of resistance. As a result, Mackie argues that state prohibition should take place only after the practice has been rejected by most people in the relevant society,
   

5. It is often not obvious which position on any given issue really is ‘‘feminist,’’ for example. There could be differences in principle, different assumptions about probable con- sequences, different knowledge of or views about the facts, or some combination of all three. One obvious example is the debate within feminism about whether pornography or prostitu- tion should be outlawed. Other examples include Germaine Greer’s arguments in
   The Whole Woman
   that various things that feminist women’s groups have fought for, such as cervical screening and personal attack alarms, actually perpetuate women’s fear and subordination, or the issue of whether feminist critiques of enforced housewifery actually contribute to a misogynist devaluing of motherhood and domestic labor.
   

   and that anti-
   fgm
   campaigners should focus on bringing about social change rather than new legislation.
   112
   

   Considerations such as Mackie’s are of great importance. Whenever state intervention is considered, it is always necessary to consider the particular circumstances of the society in question, and what effects any proposed law is likely to have. A successful strategy in one place and time may not work in a different situation. Moreover, the empirical effects of a policy clearly affect its overall normative justification. If banning
   fgm
   would, for the sorts of reasons given, only increase the number of women and girls who would suffer from the practice, then the ban would not be normatively justified
   all things considered.
   How- ever, this is not to say that the ban would be unjustified
   in principle:
   we can separate the all-things-considered justification, which includes possible unintended side effects, from the principled justification, which asks only whether the intended effects of a ban are legitimate and whether liberty regarding this issue may permissibly be con- strained. This distinction is important. Two people might agree that
   fgm
   , for example, is harmful and should be discouraged. They might further agree that it should not be banned if to do so would bring about greater harm; in other words, they agree on whether a ban is justified
   all things considered.
   However, they might disagree about a situation in which a ban would not increase harm or would even decrease it: the first person might think that a ban should be implemented in such a case, since it is
   in principle
   justified; the second might reject a ban even in such a case on grounds of individual negative liberty. In this book I am primarily concerned with these sorts of in-principle disagreements, rather than the question of all-things-considered justifications. Where I discuss and reject various objections to state action, the question is almost always one of principled justification. Thus, even where my arguments in favor of state action are successful, the questions of whether, when and how such action should actually occur in any partic- ular context are still to be answered.
   

   Finally, a critic might note that my arguments about social construc- tion directly call into question the use of the state: since social construc- tion is not confined to the state, it is not clear that the state is the best mechanism with which to alter it. One response to this point was made
   

6. Gerry Mackie, ‘‘Ending Harmful Conventions.’’
   

   above: while the state may not be the sole or even the main perpetrator of social construction, it is nevertheless a significant actor. However, it is right to say that the state does not exhaust the possibilities for change. As the discussion of consciousness-raising showed, change can come from individuals without necessarily intersecting with the state. Sometimes, indeed, state action (or certain forms of it) is explic- itly undesirable: as Hirschmann notes, ‘‘I hardly want the state to inter- vene if my husband shirks his share of the housework, even though I see the division of household labor as an important example of gender politics; that is a battle I would prefer to wage for myself.’’
   113
   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 the only or even the best method of 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. As Jean Cohen argues, although intimate rela- tionships require some forms of privacy if they are to exist as such, this does not render state action redundant: ‘‘Individuals need protection within and not only for intimacy.’’
   114
   

   The Implications of Social Construction
   

   We can now summarize the main implications of social construction for egalitarian political theory in its varied guises.
   

   The Need for Forced Disjunction
   

   First, the idea of social construction emphasizes the fact that there will be circumstances in which the changes that are necessary for justice need to be externally imposed. If change is obstructed by the habitus, and if one method of change is the disruption in habitus that results from a disjunction of habitus and field, one method of bringing about change in habitus is to impose a change in field. Often the state will be best placed to bring about such a change. To put it in liberal terms, the state can ensure that individuals have the resources to become au-
   

7. Hirschmann,
   Subject of Liberty,
   233.
   

8. Cohen,
   Regulating Intimacy
   , 41.
   

   tonomous citizens by providing such things as education countering the autonomy-limiting effects of culture and upbringing. What Bour- dieu and MacKinnon’s theories make clear is that, without such exter- nal interference, many individuals will remain within the field that reinforces their habitus, or the cultural context that emphasizes their oppression, and will therefore lack the resources to resist that oppres- sion. As Chapter 4 argues, freedom of exit is not enough, for many individuals will not take advantage of it. Instead, the state needs to provide at least some disjunctions between habitus and field for all, if all are to have a chance at autonomy.
   

   The Need for State Assistance
   

   Second, theories of social construction emphasize that the process of change is often very difficult. Individuals face resistance both from those who have a stake in the prevailing injustice, and from their own prereflexive dispositions. Moreover, as the habitus responds to the ob- jective social conditions, if those conditions are unjust, that injustice will be perpetuated and perpetrated by individual actions. As such, the state needs to take on some of the burdens of ensuring that the social conditions are just. It will not be enough to leave the justice of social practices to individual choice, for once they come to choose, individuals will already be inclined to follow those practices. Instead, the state needs to be proactive in prohibiting those practices or forms of domi- nation which are particularly harmful. The durability of the habitus means that it is unreasonable for liberals to expect individuals to take sole responsibility for altering the conditions which disadvantage them.
   

   The Need for Normative Theory
   

   Foucault, Bourdieu, and MacKinnon all insist that we cannot emanci- pate individuals by freeing them from social construction, since they assert that social construction is, in a sense, all there is. The problem is not how to free individuals from social construction
   tout court
   but rather how to free them from
   unjust
   social construction. As such, it is crucial to develop a normative theory of which sorts of social construc- tion are just and which are not.
   

   In this chapter I have argued that, although theory and conscious- ness are insufficient for change, they are crucial to it. If change is to be
   

   emancipatory rather than reactionary and, sometimes, if it is to occur at all, we need to engage in
   theory:
   developing normative and philo- sophical accounts of existing and ideal society and behavior. Despite Bourdieu’s skepticism as to the efficacy of philosophy and conscious- ness-raising, it is fitting to end with an excerpt from
   Pascalian Medita- tions
   that has a more optimistic view of normative theory: ‘‘The sym- bolic work needed in order to break out of the silent self-evidence of
   doxa
   and to state and denounce the arbitrariness that it conceals pre- supposed instruments of expression and criticism which, like the other forms of capital, are unequally distributed. As a consequence, there is every reason to think that it would not be possible without the interven- tion of professional practitioners of the work of making explicit.’’
   115
   The rest of the book attempts such work.
   

9. Bourdieu,
   Pascalian Meditations,
   188.