Sex, Culture, and Justice: The Limits of Choice (19 page)

In ‘‘If You Go Down to the Gender Ghetto Today,’’ Richard Reeves comments on the ‘‘complacent sexism’’ found in such stories, none of which consider the role of the father.

ble harm to their children, or social condemnation of themselves, it is misleading to describe their choice as fully free and not at all as evi- dence of injustice. The case for injustice is even stronger when the pressures to choose in a certain way are exerted by the advantaged group, which itself makes different choices. When working fathers take part in the condemnation of working mothers, or when fathers forbid their partners from working or persuade them not to, we have even less justification for dismissing inequality of outcome between moth- ers and fathers as the unproblematic result of free choice.

The influence factor takes a peculiar form, from the point of view of liberal intervention, if there are mechanisms by which individuals are encouraged to make advantageous choices. For example, the child of middle-class university-educated parents might be encouraged by those parents, and by talk between her friends and relatives, to continue with her education rather than to leave school at sixteen. Indeed, the deci- sion to continue with education may not seem to her like a decision at all. It might well be inconceivable for such a child not to continue to university, without her devoting any considerable thought to the mat- ter. While such pressures may weigh heavily on the children, limiting their autonomy, submission to such pressures will tend to improve the lot of those children in the long run. What, then, are egalitarian liberals to say about these cases?

The liberal desire to facilitate autonomous choice will tell against even beneficial instances of the influence factor. In a liberal society, all individuals should be given the resources to enable them to lead their lives with at least basic autonomy. As such, the liberal state should supply education for all: for children, education should emphasize the variety of opportunities available and equip them with the skills needed to pursue a variety of paths; for adults, lifelong learning should be available to facilitate the development of new skills and changes in career. These are measures the liberal state provides for everyone, whether or not they have been subjected to influence. For example, if an individual wants to stop practicing medicine and retrain as a teacher, the same resources should be available to her whether her original career choice was the result of parental pressure or the result of her continuing desire to perform socially beneficial work. Over and above the resources which the liberal state offers to everyone in the name of autonomy, however, those who are made better-off as a result of the influence factor are not deserving of special resources, for two

reasons. The first is practical. Because state resources are limited, it is more important that they be devoted to those who are worse off, once the minimum needed for autonomy has been universally provided. Second, in many cases, the fact of being financially better-off enhances autonomy. If an individual is earning a high wage or is in a position of esteem in society, she will be more able to act autonomously. Her fi- nancial security will afford her a safety net, should she decide to pursue a risky career or a period of retraining, and the skills and contacts gained from a professional career will stand her in good stead in many new careers. Thus, while an individual who is encouraged to pursue a path that makes her better-off does suffer from restrictions on auton- omy in the first instance, her autonomy will tend to be enhanced in the long run. Besides the basic educational resources offered to all, then, the influence factor is not sufficient to justify special state inter- vention if it results in advantage.

It ought to be clear that the influence factor does merit special inter- vention when it is accompanied by the disadvantage factor—such as in the case of a child living in a community where further education is not considered. A child who chooses to leave school at sixteen because her friends are doing so, her parents did so, and because staying on is never really considered will be significantly disadvantaged by her choice. There may be further mechanisms of influence, such as peer pressure or the low expectations of her current school. In such circum- stances, the child’s choice to leave school, though freely made in the sense that the state provides free further education and the child is not physically compelled to reject it, should not put an end to normative concern. The state should perhaps devote extra resources to encourag- ing education in that area, or offer special support programs or incen- tives for children who continue with their education (be it academic or vocational).

Multiculturalism and the Insufficiency of Free Choice

We can now consider the insufficiency of choice in the light of multi- culturalism. It is often claimed that theories of social construction
sup- port
multicultural claims and undermine liberal universalism. How- ever, the first thing to recognize is that some cultural and religious groups are worse than liberal societies in emphasizing differently ad-

vantageous norms of behavior for different people within the group, often but not always based on gender.
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And, as Ann Cudd shows, different social institutions and normative backgrounds can systemati- cally disadvantage particular groups within a society, even if members of those groups are able to exercise ‘‘free choice.’’
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We also need to recognize that individual members of such groups will find it harder to choose to take advantage of the liberal framework of rights that formally applies to them than Barry implies. The fact that a religious group in a liberal society may, under Barry’s scheme, tell its members what to do and read as long as it allows them to leave if they want to gives the group scope to exert enormous pressure on its members both to stay and, while they remain members, to ‘‘freely choose’’ to perform roles that significantly disadvantage them.

This is important because Barry’s liberal response to cultural diver- sity allows groups to implement discriminatory norms and laws if indi- viduals are members of those groups, and so abide by the laws, as a result of their free choice. Feminist liberal Marilyn Friedman similarly argues that ‘‘cultural practices that violate women’s rights are neverthe- less permissible if the women in question accept them.’’
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As an exam-

This point has been made by many liberals and feminists. For example, see Okin, ‘‘Is Multiculturalism Bad for Women?’’; Nussbaum,
Sex and Social Justice;
and Barry,
Culture and Equality.

Ann Cudd’s argument concerns a counterexample to the Nozickian marriage market, whereby a group of men and women are free to marry each other, or not, as they choose. Cudd shows that, if a custom exists that only the men are allowed to propose (women are allowed to accept or reject proposals, but not make them themselves), then the men will be systematically advantaged over the women—even though the women may freely choose whether or not to marry any particular man (
Analyzing Oppression
, 130).

Friedman,
Autonomy, Gender, Politics
, 188. This way of phrasing the argument is inter- esting. Most—possibly all—cultural practices violate people’s rights if they are not accepted by the people concerned. If you shake my hand or put a Christmas tree in my house without my consent, you violate my rights, for you invade my bodily integrity or private property. In order to be saying something more significant, Friedman must mean something else. There are some practices, such as assault and murder, that violate rights even when consented to, in the sense that consent is not counted as an excusing factor. One possibility, then, is that Friedman is denying the possibility of such a category of acts and arguing that no practice can be rights-violating if it is consented to by all concerned. However, Friedman’s phrasing does not support this interpretation. She states that rights-violating practices ‘‘are neverthe- less permissible’’ if consented to, implying that they remain rights-violating, and yet there is something odd about the idea that consent does the normative work of rendering a practice permissible but not at the same time the normative work of removing any rights violation. Moreover, Friedman does not want to deny the possibility of an act that is consented to but nevertheless rights-violating: domestic violence is given as an example of an act that consent does not justify since it is not a ‘‘tradition in the honorific sense of the term’’ (
Autonomy, Gender, Politics,
202). I criticize the idea that rights violations perpetrated by cultures are

ple Barry considers Orthodox Jewish and Muslim divorce law, under which women and not men require the consent of their spouse in order to obtain a divorce. Barry argues: ‘‘Although [Orthodox Jewish and Muslim divorce law] treats men and women unequally, it is beyond the scope of a liberal state to rewrite it, as long as the only reason for anybody’s adhering to it is the wish to remain a member in good stand- ing of a certain religious community.’’
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But the wish to remain a mem- ber of one’s own community should not be dismissed as the ‘‘only reason’’ that individuals abide by discriminatory norms. There will be significant pressures on the harmed individuals both to remain within their group and to adhere to its norms. These pressures should worry us because they are manifestations of the more extreme forms of the disadvantage and influence factors. When Orthodox Jewish and Mus- lim divorce law seriously disadvantages women, it seriously benefits men, giving them control over the divorce process. This discrepancy ought to make us consider the case further. Jewish and Muslim women experience enormous pressure both to remain in their religious groups and to adhere to the unequal laws set by those groups. They will want to remain within the community in which they have grown up, and may have been brought up to believe that women do not deserve an equal say in divorce proceedings. That impression may well be rein- forced, not only by other female members of the group, but also by precisely the men who are advantaged by the unequal ruling. The fact that, under these circumstances, Orthodox Jewish and Muslim women have ‘‘freely chosen’’ to remain in those religious groups and abide by their laws does not make the disadvantage they suffer any less unjust. A liberal state ought to intervene.

State intervention could seek to address the disadvantage factor, the influence factor, or a mixture of both. To return to the case of the housewife, the state could address the disadvantage factor through such policies as providing wages for housework,
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education and sup- port for women wishing to reenter the workforce after time spent look- ing after children, and financial assistance for housewives wishing to leave their husbands. The influence factor could be mitigated through

normatively different from rights violations perpetrated by other sorts of group later in this chapter.

Barry,
Culture and Equality
, 128.

For detailed analysis of the demand for wages for housework, see MacKinnon,
Toward a Feminist Theory of the State,
chap. 4.

education or advertising campaigns encouraging women to enter paid work, or men to take responsibility for childcare. In many cases, miti- gating the disadvantage will go some way toward lessening the system- atic influence on particular groups—if childcare is financially re- warded, then more men will consider it as a viable option. The precise method of state intervention in any one case will depend on practicality and, crucially, the demands of other liberal principles. I address this issue and the precise nature of state intervention at greater length later in this chapter.

I have argued that when unequal outcomes result from different choices and not from clear discrimination, we can still identify injus- tice if the difference between the outcomes is significant and enduring, and if there are identifiable pressures on certain members of a group to make the disadvantageous choice. In such circumstances, we cannot clearly say that the different outcomes are just. Why have liberals such as Barry been reluctant to recognize injustice in such cases? Through- out
Culture and Equality,
Barry demonstrates his willingness to con- demn unjust and oppressive actions, even where those result from par- ticular social norms. ‘‘The liberal position is clear,’’ he states. ‘‘Nobody, anywhere in the world, should be denied liberal protections against injustice and oppression.’’
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Why is Barry unwilling to use liberal pro- tections where oppression results from social norms that affect the choices that individuals make, and not just the things that other people do to them? The answer, I think, stems from liberals’ wariness to infer oppression when the oppressed are unprotesting. Liberals are right to think that a state which forces people to do what they don’t realize is good for them often does more harm than good. Liberals are wrong, however, to be wary of noticing when individuals’ freedom and equality would be better served if their choices were genuinely freer. Liberals should encourage the dissolution of discriminatory practices and norms. Without such norms, individuals could still choose courses of action that disadvantage them, but the systematic and unequal pres- sure that constitutes oppression would be absent. Without the influ- ence factor, in other words, the disadvantage factor does not necessarily indicate injustice. Liberal institutions ought to ensure that, wherever possible, pressures to make disadvantageous choices should not fall disproportionately on a specific group or groups. Where equalizing