Cover image for Sex, Culture, and Justice: The Limits of Choice By Clare Chambers

Sex, Culture, and Justice

The Limits of Choice

Clare Chambers


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ISBN: 978-0-271-03302-0

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Sex, Culture, and Justice

The Limits of Choice

Clare Chambers

“Drawing on Catharine MacKinnon, Pierre Bourdieu, and Michel Foucault, Clare Chambers argues that although all our choices are socially constructed, some are more in keeping with the demands of justice, equality, and autonomy than others. Focusing on choices by women in liberal cultures, she detects two troubling features—disadvantage and influence. When both are present, an injustice is likely to be done, warranting state intervention. An incisive, well-written book with a sustained, original argument.”


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Autonomy is fundamental to liberalism. But autonomous individuals often choose to do things that harm themselves or undermine their equality. In particular, women often choose to participate in practices of sexual inequality—cosmetic surgery, gendered patterns of work and childcare, makeup, restrictive clothing, or the sexual subordination required by membership in certain religious groups. In this book, Clare Chambers argues that this predicament poses a fundamental challenge to many existing liberal and multicultural theories that dominate contemporary political philosophy.

Chambers argues that a theory of justice cannot ignore the influence of culture and the role it plays in shaping choices. If cultures shape choices, it is problematic to use those choices as the measure of the justice of the culture. Drawing upon feminist critiques of gender inequality and poststructuralist theories of social construction, she argues that we should accept some of the multicultural claims about the importance of culture in shaping our actions and identities, but that we should reach the opposite normative conclusion to that of multiculturalists and many liberals. Rather than using the idea of social construction to justify cultural respect or protection, we should use it to ground a critical stance toward cultural norms. The book presents radical proposals for state action to promote sexual and cultural justice.

“Drawing on Catharine MacKinnon, Pierre Bourdieu, and Michel Foucault, Clare Chambers argues that although all our choices are socially constructed, some are more in keeping with the demands of justice, equality, and autonomy than others. Focusing on choices by women in liberal cultures, she detects two troubling features—disadvantage and influence. When both are present, an injustice is likely to be done, warranting state intervention. An incisive, well-written book with a sustained, original argument.”
“Chambers’s refreshing approach has the potential to expand the scope of conventional liberal theory by showing how liberals can (and should) directly meet the challenge of postmodern approaches and by demonstrating that feminist contributions are the well from which most innovations in liberalism are drawn.”
“This book takes up an important topic in the political philosophy of liberalism: what is the state to do when individuals make choices that are socially constructed and disadvantageous to them? It insightfully and originally bridges the divide between continental and analytic political philosophy, combining the insights of Foucault, Bordieu, and Butler on one side, and those of Rawls, Raz, Nussbaum, Okin and others on the other side. The book contributes significantly to the literature of liberalism, autonomy, and feminism.”
“The argument is clear, and the review of the literature on liberalism, paternalism, and autonomy is thorough and succinct.”
“It is a very valuable contribution to many different bodies of work (liberal theory, multiculturalism, feminism, and social theory); equally important, however, it should generate interesting and further debates of the role of the state in promoting gender equality.”

Clare Chambers is Lecturer and Fellow in Philosophy at Jesus College, Cambridge.




Part One: Theories of Social Construction

1. Creativity, Cultural Practice, and the Body: Foucault and Three Problems with the Liberal Focus on Choice

2. Masculine Domination, Radical Feminism, and Change

3. Social Construction, Normativity, and Difference

Part Two: Liberalism, Culture, and Autonomy

4. All Must Have Prizes: The Liberal Case for Interference in Cultural Practices

5. Two Orders of Autonomy and Political Liberalism: Breast Implants Versus Female Genital Mutilation

6. Paternalism and Autonomy

7. Liberal Perfectionism and the Autonomy of Restricted Lives





I’ve had [cosmetic] surgery. . . . There comes a point when something bothers people enough that it affects the way they live their lives every day, and that’s the time they have cosmetic surgery. Most don’t have it to be ultra-glamorous. The average person has it to feel normal. To have what society perceives as a normal-sized nose or bust.

—Lindsay Mullins, quoted in James Meek, “Prime Cuts”

You have to learn how to wear [Manolo Blahnik’s stiletto-heeled] shoes; it doesn’t happen overnight. But now I can race out and hail a cab. I can run up Sixth Avenue at full speed. I’ve destroyed my feet completely, but I don’t care. What do you really need your feet for anyway?

— Sarah Jessica Parker, quoted in Rebecca Tyrrel, “Sexual Heeling”

In 2002, several newspapers reported the case of Myriam Yukie Gaona. Gaona was described as a former stripper with no medical qualifications who had posed as a cosmetic surgeon in Mexico for several years. She had injected substances into thousands of people, mostly women, to reduce or augment their breasts, stomachs, buttocks, and calves. Many of her patients were attracted with promises that, after the procedures, they would conform to an artificial and idealized standard of beauty: one patient, Maria Concepcion Lopez, says that she visited Gaona because “‘she said she’d make us look like Barbie dolls.’”

The injections were successful at first. More and more patients were drawn to visit Gaona’s surgery by word-of-mouth, seeing the apparently amazing results that other women had achieved. One woman even took her husband and her daughter along for injections. However, patients increasingly began to complain of serious medical problems, including aches and pains, lumps that burned when the weather was sunny, and skin that turned black and dead. Medical investigations found that Gaona had been injecting people with mixtures of industrial silicone (usually used to seal windows and doors), baby oil, vegetable oil, and motor oil. Patients had to have mastectomies, have limbs amputated, and undergo agonizing surgical procedures to drain their bodies of congealed globules of silicone and oil. By December 2002, over 400 alleged victims had received remedial medical treatment, over 160 women and one man had filed legal complaints, and Gaona was awaiting trial for impersonating a medical doctor, causing serious injury, and administering drugs without a license.

In Britain a year earlier, an Oxfordshire Community Health NHS Trust conducted a survey asking 164 women about their footwear habits and preferences. The survey found that one in five women wore high-heeled shoes in order to please her boyfriend, husband, or boss, and that one in three women liked wearing high heels. More than 80 percent of women said that they would not change their style of shoe to improve a foot problem. The Head of Podiatry Services at the Trust, Philip Joyce, predicted that three out of four women would have foot problems by the time they were sixty, often as result of wearing high-heeled shoes. “We have tried for years without success to persuade women to wear the dreaded sensible shoes,” he told the Telegraph. “High heels have a long history of social status, sexuality and power. It is not really surprising, by the time girls are four years old they know that Disney’s high-heeled glass slipper does not fit the ugly women.”

Most liberals would interpret these two cases very differently. The first, the case of Myriam Gaona, is contemptible in many easily definable ways, and a clear affront to the rights and freedoms of the women and men who suffered at her hands. Her actions, after all, were built on deception. According to the allegations, Gaona lied to her patients about her medical qualifications, displaying fake medical certificates in her offices. She also lied to them about her procedures, claiming that she was injecting “citrics” and “collagen” rather than industrial silicone and motor oil. It is clear, from the liberal perspective, that those women and men who suffered crippling and life-threatening injuries at Gaona’s hands are victims of a serious injustice. It is also clear that Gaona should never have been allowed to perform the injections, and that she ought to be prosecuted.

On the other hand, we might think that the women in the Oxfordshire foot survey are victims of no such injustice. They were not deceived into buying high-heeled shoes. They do not wear high-heeled shoes in the mistaken belief that the heels are not damaging to their feet, since 80 percent of the respondents said that even an actual foot problem would not cause them to change their habits. Liberals would, I imagine, argue that such women are exercising their freedom to choose what to wear on their feet, and to decide whether the aesthetic advantage of high-heeled shoes outweighs the risk of foot problems. No liberal would suggest that the manufacturers of high-heeled shoes ought to be prosecuted, or that injustice has been done.

But are the cases really so different? Gaona’s lawyer, Jose Julian Jordan, does not think so. The Shanghai Star reports him as saying, “Here, injecting someone isn’t a crime. If you tell me, ‘I want volume here, I want to reduce this,’ and a doctor tells me the treatment is correct and you are already an adult, I’m not cheating anyone, I’m helping with what you’ve asked me to do.” Of course, Jordan’s claim is somewhat disingenuous—in Gaona’s case, the treatment certainly wasn’t “correct,” and Gaona was not a doctor. But he raises an issue of crucial relevance to liberal thought: if an adult wants to undergo a dangerous procedure, or take part in a harmful practice, with what legitimacy does the state prevent them from doing so? If people may legitimately decide to wear high heels despite the danger to their feet, should they not also be allowed to decide to undergo industrial silicone injections? If Gaona had told her patients that she had no formal medical qualifications, and that there was a risk of injury from her injections, would she have been doing anything wrong?

In this book, I suggest that there are in fact many similarities between the cases of the Mexican and Oxfordshire women, and that liberal theory is not well equipped to deal with those similarities. Both cases involve women who voluntarily risk harming themselves, albeit to different degrees and with different levels of information, in order to conform to standards of beauty. Both cases, in other words, involve women taking risks in order to conform to social norms. Moreover, both cases illustrate women attempting to conform to social norms, not only to please others, to avoid sanctioning from others, or to gain their approval, but also to please themselves. Both the Mexican and the Oxfordshire women want to look attractive, and feel happier about themselves when they do. But their desires to please themselves and others by conforming to beauty norms is not an isolated, individual decision or preference. It is defined and regulated by the social context that they live in, exemplified by Sex and the City, Barbie dolls, and the Disney version of Cinderella.

Most liberal theory, I argue in this book, is built on conceptual premises that prevent it from criticizing this process adequately. As a result, the liberal values of freedom and equality are compromised. Liberal theory tends to support and protect people’s freedom to make harmful choices that threaten their well-being or their equality, rather than protecting their freedom to resist inequality and supporting them in doing so. As such, liberals can end up protecting inequality and social constraint. Feminist theory has generally been much more successful at analyzing and criticizing cases such as the two just described. In part, this greater success is because feminist philosophers, in theorizing the nature and variety of women’s oppression, have been much more willing than liberal philosophers to take on the issue of social construction and the limits it places on individual autonomy. In particular, feminists have been more willing to adopt certain ways of theorizing about social construction and autonomy. I suggest, then, that theories of social construction can usefully be used to develop a normative approach that more adequately addresses inequality and unfreedom.

In the course of the book, I draw on the work of feminist theorists, and particularly on feminist work that highlights the position of women in the private sphere. Much of what is lacking in liberalism is illustrated by paying attention to this sphere. If we consider the workings of personal relationships within patriarchal society, and particularly the supposedly appropriate roles of women, it becomes clear that many liberal policies that aim to maximize freedom and equality actually perpetuate systematic inequality. Moreover, many feminists find the combination of theories of social construction with liberal values particularly fruitful. Analysis of the social construction of subjects can be similar to feminist arguments concerning the entrenchment of gender difference despite formal equality, and liberal normative arguments are crucial to the feminist critique of patriarchy.

The book also reacts to theories of multiculturalism, which can be seen as drawing on both liberal and social constructionist arguments. Multiculturalism appears to challenge the liberal commitment to universal values, a challenge that is also posed by social construction, by highlighting cultural differences and particularities. And yet culturally sanctioned inequalities, in particular gender inequalities, highlight the need for universal liberal normative claims. Liberals and feminists cannot achieve freedom and equality if these values are allowed to remain culturally particular. The challenge, then, is to combine a liberal feminist commitment to universal values with an awareness of the ways that culture structures our identities and relationships.

Social Construction

Consider the following words of an anthropologist named Fran, speaking in the late 1970s:

I don’t particularly like my breasts right now. They’re just too saggy and large according to the ideal of body proportions. . . . In many cultures sagging breasts are a sign of beauty and are sought after. . . . Most tribal societies don’t favor upright breasts. That is mostly a Western cultural ideal. From a tribal society’s point of view, we always want to look immature (laughs) and there’s a lot of truth in that. . . . You’d think that with all the information I’ve been exposed to I’d feel better about myself. But when your whole upbringing and your culture have made you internalize these fetishes as ideals, there are just too many pressures working on you. I am a product of my culture.

Fran is one of the women featured in Daphina Ayalah and Isaac Weinstock’s Breasts: Women Speak about Their Breasts and Their Lives, for which ordinary women of all ages consented to having their breasts photographed without any makeup or airbrushing. Some of the women have had breast implants or reductions. Some have had mastectomies. Some were lactating. Accompanying the pictures are testimonies given by the women about their feelings toward their breasts. They talk about their insecurities about their bodies—their “tremendous anxiety and self-consciousness”—and their desire to conform to a normalized ideal.

Perhaps the greatest contribution of the book is the direct evidence it provides that, despite women’s worries, there is no such thing as “normal.” Or, to put it another way, the category of “normal” encompasses enormous diversity. Most of the women pictured have natural breasts, unremarkable and yet utterly astonishing at the same time, for unenhanced breasts are so rarely seen. Despite the ubiquity and visibility of the photographed breast, in its natural form it is concealed. This point is made clear by women’s reactions to Alayah and Weinstock’s photographs prior to publication: “The one observation that most women made during their brief exposure to the photographs was about the variety of breasts. ‘I always thought breasts looked pretty much the same. How amazingly different they all are. They seem to have different characters—like individual faces.’”

Although the book is nearly thirty years old, explicitly intended as part of the second wave of feminism, the women in it could just as easily be speaking today. Susan Bordo urges us to recognize that “now, in 2003, virtually every celebrity image you see—in the magazines, in the videos, and sometimes even in the movies—has been digitally modified. Virtually every image. Let that sink in. Don’t just let your mind passively receive it. Confront its implications.” The enormous rise in the number of women undergoing cosmetic surgery emphasizes that, despite decades of feminism, women still feel compelled to conform to some ideal standard. The U.K. Breast Implant Registry recorded 9,731 patients receiving new cosmetic implants in 2004. In other words, in the United Kingdom a woman receives her first breast implants every single hour, twenty-four hours a day, 365 days a year. Between 1993 and 2004, the Registry records 68,177 women having a total of 185,952 cosmetic breast implants. The American Society for Aesthetic Plastic Surgery reported 364,610 cosmetic breast enlargements in 2005—up 9 percent from 2004. That figure amounts to more than forty-one operations every hour.

In attempting to understand and criticize phenomena such as breast implants, feminists can turn to a combination of liberal normative values with a theory of social construction. Social construction enables feminists to understand how it is that patriarchy persists in liberal societies and despite formal equalities: as Fran notes, norms of gender inequality are deeply rooted within individuals and social structures, and cannot be uprooted without radical change. Such an understanding is crucial to the feminist claim that gender inequality persists despite formal, legislative equality. Liberal normative values provide a program for change: they suggest that we should aim for freedom and autonomy even from within the confines of social construction, and that we should also aim to increase gender equality.

However, several problems arise when attempting to reconcile liberal values with theories of social construction. How can the recognition that all social forms constrain people, by constructing their sense of what is possible or appropriate, be reconciled with the liberal desire to emancipate individuals from norms that limit their autonomy? Does social construction rule out autonomy? Moreover, if normative values themselves are the product of social construction, how is it possible, both philosophically and epistemologically, to criticize our own values? In particular, how is it possible to maintain that liberal normative values are more than the situated and relative values of a particular time and place, just like the beauty norms of different cultures that Fran describes? On what grounds can we argue for liberal or feminist change?

In general, we can identify three key issues arising from a feminist reconciliation of liberalism and social construction: how we should understand the thesis of social construction, the (im)possibility of universalism in the context of social construction, and the appropriate liberal response to difference. These issues inform the rest of the book. The first issue, how to understand social construction, is tackled in Part One, in which I develop an account that draws on both the poststructuralist work of Michel Foucault and Pierre Bourdieu and the feminist approaches of Catharine MacKinnon, Seyla Benhabib, and Nancy Hirschmann. The second and third issues, of how to combine universal liberal normative values with an awareness of social construction and the fact of difference, are the main focus of Part Two. In the remainder of this chapter I consider the varied liberal uses of choice, and the work of some of the liberal feminists who have attempted to reformulate them.

Liberalism, Feminism, and Choice

In this book I combine a liberal approach to normative values and reasoning with a feminist awareness of social construction and gender inequality. This combination is not in itself original: many feminists have attempted to retheorize or utilize liberal values. In part, feminists have felt the need to reconfigure liberalism rather than merely use it intact because of the historical fact that liberalism’s grand claims to provide universal freedom and equality often have not delivered those things for women (and various other social groups). As Catharine MacKinnon asks, why has liberalism “needed feminism to notice the humanity of women in the first place, and why [has it] yet to face either the facts or the implications of women’s material inequality as a group, has not controlled male violence societywide, and has not equalized the status of women relative to men[?] If liberalism ‘inherently’ can meet feminism’s challenges, having had the chance for some time, why hasn’t it?”

One consequence of feminists’ need to engage philosophically with liberalism, rather than merely adopt and apply it, is a greater awareness and development of theories of social construction. To understand why it is that patriarchy persists despite formal legal equality, feminists have had to analyze how gender inequality is so deeply entrenched in social norms that individual free choice cannot overcome it. Different liberal theories give different weight to choice, and are differently mindful of social construction. In general, the greater the weight given to choice, the less the attention paid to social construction; for as I argue throughout this book, an adequate understanding of the latter illustrates what is wrong with the former.

A brief survey of contemporary liberal thought illustrates the variable relationship between choice and social construction. At one extreme are those liberals, or libertarians, who ignore the implications of social construction and consider individual choice to be the final and unproblematic beginning of normative theory, with some process or pattern of preference-satisfaction at the end. Examples are thinkers such as Robert Nozick and Chandran Kukathas, who focus only on the extent to which individuals are able to choose and act atomistically and pay no consideration to how society forms people’s preferences or to how people’s preferences affect society. A different form of liberal theory, which nevertheless has some connection to libertarian thought, is luck egalitarianism. Exemplified in the work of theorists such as Ronald Dworkin, G. A. Cohen, and Richard Arneson, luck egalitarianism (in very general terms) is the view that equality requires that individuals are compensated for disadvantage that results from certain forms of luck. However, if individuals have made choices that led to their disadvantage, then they are deemed responsible and may not claim compensation. Luck egalitarians may take account of some forms of social construction, recognizing, for example, that individuals’ choices may be perverted by the influence of others. However, it is crucial to the luck egalitarian project that a sphere of responsible, individual choice can be identified, and that this sphere is thereby immune from considerations of justice.

An alternative and familiar use of the concept of choice in liberal thought is through the device of freedom of exit. This idea states that certain sorts of inequality which would otherwise be unjust become just if the individuals concerned are able to leave the group or social arrangement responsible for the inequality. If they remain within the group, they are assumed to have consented to or chosen the inequality, thus making it compatible with justice. This device is used by a wide range of theorists, from the libertarian theory of Kukathas to the far stronger egalitarianism of Brian Barry and the liberal feminism of Ayelet Shachar and Marilyn Friedman. There are two main reasons for this diversity of support for freedom of exit. First, it demonstrates the fundamental relationship between liberalism and choice. Few liberals have felt able to deny that individuals’ self-regarding choices can be just, and have thus been loath to criticize hierarchical social groups if membership appears voluntary. Second, the doctrine of freedom of exit is versatile since it can be coupled with various different degrees of awareness of social construction. For libertarians such as Kukathas the nature and conditions of the choice to remain within a disadvantageous relationship are unimportant, while for feminists such as Friedman it is necessary to ensure that the choice is free from certain sorts of social construction. Thus, although Friedman agrees that “cultural practices that violate women’s rights are nevertheless permissible if the women in question accept them,” she places various constraints on the sorts of conditions that must be in place if a woman’s acceptance is to count. I discuss the strategy of freedom of exit in detail in Chapter 4. Its key problem is that even an account such as Friedman’s cannot escape the fact that cultural practices are inevitably reinforced by the sorts of social norms that undermine an individual’s ability to make the sort of “free” choice that justice would require.

Another strategy for focusing on choice while placing various conditions on the nature and circumstances of that choice is deliberative democracy. In the liberal tradition this idea has been developed in the work of thinkers such as Jürgen Habermas, John Dryzek, and Amy Gutman. Seyla Benhabib’s version of deliberative democracy, which she terms “discourse ethics,” is useful, since it is developed along distinctly feminist lines. According to discourse ethics, democratic deliberation and the policies that result from it must proceed in accordance with three principles: egalitarian reciprocity, voluntary self-ascription, and freedom of exit and association. The general idea is that when discourse is constrained in these ways, it is proper to follow those policies and principles that are agreed upon, and which thus have been chosen by the participants. The constraints are needed, in part, because of the problem of social construction: if we allow choice to rule unchecked, we risk being bound by decisions that result from various forms of social domination or oppression.

However, there is considerable tension in this desire to prioritize choice while also constraining it. For example, it is unclear how much egalitarianism is required by Benhabib’s discourse ethics. In places, it appears as though egalitarianism is brought about if and only if deliberation demands it, since Benhabib states that “discourse ethics does not present itself as a blueprint for changing institutions and practices; it is an idealized model in accordance with which we can measure the fairness and legitimacy of existing practices and aspire to reform them, if and when the democratic will of the participants to do so exists.” The problem with this approach is that it is disingenuous to talk about or wait for the emergence of a democratic will in circumstances of inequality, for there can be no truly democratic will until equality is already established and protected.

Perhaps, then, equality is to be stipulated in advance. This is the implication of other parts of Benhabib’s work. Her first principle of discourse ethics is egalitarian reciprocity, which states that “members of cultural, religious, linguistic and other minorities must not, in virtue of their membership status, be entitled to lesser degrees of civil, political, economic and cultural rights than the majority.” Moreover, Benhabib assumes that one dissenting voice against inequality establishes a democratic will for its abandonment. These provisions solve the problem of inequality but they do so while leaving little role for the majoritarian choice, which was the original reason to favor discourse.

There are similar problems with Benhabib’s second principle, voluntary self-ascription: “An individual must not be automatically assigned to a cultural, religious, or linguistic group by virtue of his or her birth. An individual’s group membership must permit the most extensive forms of self-ascription and self-identification possible.” But it is impossible for an individual not to be ascribed to a linguistic group by virtue of birth, for if an individual is to express a preference about her group membership, she must already have learned a language that she did not herself choose. Benhabib may mean simply that such group memberships must not be ascribed by virtue of birth once and for all, but if that is the case, it is not clear why she labels the principle “voluntary self-ascription” rather than “freedom of exit.” Indeed, the idea of “voluntary self-ascription” does not sit easily with the idea of social construction. It is a laudable aim to enable individuals to be the authors of their own lives. However, there is at least a tension between the idea that individuals can be “self-interpreting and self-defining” and the view that they are “constituted through culturally-informed narratives.”

Overall, then, though Benhabib’s founding assumptions (strong universalism combined with sensitivity to cultural particularism and an awareness of social construction but a refusal to submit to cultural relativism) and her conclusions (in general, a firm commitment to egalitarianism and autonomy) are laudable, and in line with my approach, her method of discourse ethics is less successful.

Deliberative democracy—or in Rawlsian terminology, public reason—is also a feature of another variety of liberalism that feminists have retheorized: political liberalism. Political liberals attempt to combine the liberal commitments to both universal equality and individual choice by employing a political/comprehensive distinction, according to which freedom and equality must apply in the political sphere, to individuals qua citizens, but need not apply to the sphere in which individuals choose and live out their comprehensive conceptions of the good. It is compatible with political liberalism, then, if individuals live in hierarchical groups, as long as those hierarchies are not carried over into citizenly activities such as voting or adhering to the law. In effect, political liberalism involves a restriction of the scope of equality: rather than applying to all aspects of life, equality is required only in the political sphere.

Political liberals also try to avoid privileging any particular substantive moral position by basing their liberalism on the notion of consensus. Political liberals argue that people who hold many different conceptions of the good can nevertheless agree on liberalism as the best political doctrine, and that this agreement can be based on different things for different people. Liberalism prevails, then, without a particular conception of the good prevailing. However, the problem with this approach is that we have no guarantee that liberalism and liberal values will be the result of the overlapping consensus, if the outcome of that consensus is not stipulated in advance. While political liberalism claims support from a variety of comprehensive doctrines, rather than on universal acceptance of substantive liberal values, there are in fact claims to universality behind the values on which it rests that undermine its claims to accommodate choice. Feminist political liberal Drucilla Cornell, for example, writes that “political liberalism must find a way to justify a liberal and thus tolerant attitude toward nonliberal, yet decent, nations. Otherwise, political liberalism can rightly be charged with being illiberal because it imposes a view of the good associated with Western ideals of democracy that other countries and cultures do not accept.” Cornell’s claim is that political liberalism ought to tolerate decent cultures that do not conceive of their members as equal. Nonetheless, she asserts, “There certainly is basis for optimism that nations could reach an overlapping consensus that one of the universals that must be recognized by all cultures is the equivalent evaluation of feminine sexual difference.” But if the ideals and values of different cultures are what is doing the work rather than an antecedent notion of the universal value of gender equality, there is surely more evidence of an overlapping consensus on women’s inferiority. Most if not all societies are highly and hierarchically gendered: even liberal societies have not fully embraced women’s equality, as Cornell agrees. It is therefore difficult to see how an overlapping consensus on women’s equality could emerge in dialogue between actually hierarchical liberal societies and explicitly hierarchical nonliberal societies. As with discourse ethics, political liberalism’s attempt to take account of the fact of social construction and difference through the mechanism of choice results in a conflict with its other normative value of equality. One or the other will have to give way: either equality takes precedence regardless of the actual views and choices of those involved in dialogue, or the results of the dialogue are taken to be the requirements of justice even if they entrench inequality.

Will Kymlicka has a different strategy for combining the liberal commitment to choice with an awareness of social construction. He argues that particular cultures within liberal societies provide the context within which individuals can make choices and exercise autonomy, and that they therefore require protection. Without a cultural framework, Kymlicka argues, individuals do not have the raw materials from which to forge autonomy: “Freedom involves making choices amongst various options, and our societal culture not only provides these options, but also makes them meaningful to us.” Kymlicka combines this claim with a strong argument that liberals must value autonomy. He discusses the conflict between the values of autonomy and toleration, a conflict that is exemplified in the dilemma of whether liberals should tolerate cultures that suppress individual autonomy, and argues that what distinguishes liberalism is precisely its commitment to individual rather than group autonomy. Liberals must therefore tread a delicate line: on the one hand, they must protect individual autonomy from illiberal cultural groups, but on the other hand, they must protect cultures, since their continued existence is a prerequisite for autonomy.

I endorse much of Kymlicka’s argument as outlined in the previous paragraph. As Part One shows, I agree that autonomy is developed in a social context, and that the nature of an individual’s ability to choose is shaped by her particular cultural memberships. I also agree with Kymlicka that liberalism must be committed to individual autonomy as opposed to group autonomy, as will become clear throughout Part Two. However, Kymlicka’s strategy for treading the delicate line between group and individual protection is problematic, for several reasons. It is not always easy to tell precisely what Kymlicka’s normative policy proposals are. At times he appears to favor a strong universalist liberal approach, such as when he argues that an individual must have “the freedom to move around within one’s societal culture, to distance oneself from particular cultural roles, to choose which features of the culture are most worth developing, and which are without value,” and when he argues that we should “seek to liberalize” illiberal cultures and nations. Elsewhere his proposals are rather more limited. Despite endorsing the need to liberalize, Kymlicka cautions that “there is relatively little scope for legitimate coercive interference.” This limitation is not confined to the sphere of international intervention: according to Kymlicka, even within one state, a national minority (as opposed to an immigrant group) which is illiberal should nonetheless be permitted to govern its own affairs as it sees fit. Even though a “national minority which acts in an illiberal way acts unjustly,” still the most the majority state should do (barring extreme cases such as torture or slavery) is “speak out” or offer “various incentives” to change.

The general distinction that Kymlicka makes between national minorities and immigrants, with the former given greater scope for illiberality than the latter, is problematic because it relies on the concept of choice. This reliance does not sit easily with Kymlicka’s own account, since not only do his arguments about the cultural context of choice undermine the extent to which choice can be a legitimator of culture (a theme that runs throughout this book), but also choice does not function in the required way when discussing groups that persist through generations. Kymlicka wishes to show that immigrants have a greater obligation to assimilate and liberalize than national minorities because the former and not the latter chose to enter the liberal society. The normative role of this sort of choice is so strong that it may even justify allowing certain groups, such as the Amish and the Hutterites, to impose the usually forbidden internal restrictions on their own members, on the grounds that these groups historically agreed to be part of wider liberal / American society only on condition that such group autonomy was allowed. But this approach contradicts what Kymlicka rightly identifies as liberalism’s insistence that the correct unit of analysis when protecting autonomy is the individual and not the group.

We can identify two types of things that an individual member of a group might consent to: first, her membership in the group or in the wider state, and second, the particular practices of, or restrictions imposed by, the group or the wider state. Kymlicka’s claim is that previous members of groups such as the Amish consented to membership in American society only on particular conditions (namely, the ability to impose certain practices on their members in perpetuity). In order to consider these historical agreements as binding, Kymlicka must argue:

1. internal restrictions are valid if group membership is consented to (something like the freedom of exit claim criticized earlier);

2. the choice to be a member of a group is more important than being able to choose the particular practices of a group (without this claim then freedom from internal restrictions would be more important to the Amish than their choice or otherwise to be citizens of the United States);

3. agreements made by ancestors are binding on descendants—even if those agreements explicitly constrain the descendants’ autonomy;

4. and it is unjust if an individual is a member of a group or state to which she has not consented or whose terms she has not agreed (and thus unjust if the Amish must assimilate into U.S. society on terms which they did not agree).

Each of these claims is problematic, although not all problems can be discussed now. The first has already been criticized, and is investigated at length in Chapter 5. The second is a complex claim that forms the basis for discussion over several chapters in Part Two. The third is highly controversial and the subject of an emerging literature that cannot be engaged with here; suffice to say that Kymlicka does not argue in its favor in Multicultural Citizenship and so the case is still to be made. The case needs to made, however, if the fourth is to work. For once we consider the individual as the unit of autonomous choice, it seems that no one has consented to membership in their initial cultural group (which, according to Kymlicka, shapes an individual’s very ability to choose and which they can rarely or barely leave), and no one has consented to membership in their state except first-generation immigrants, settlers, and state-builders. In each and every category of group, the only individuals who can conceivably be considered voluntarily to have chosen membership in the group and consented to its terms are the first generation (more realistically, certain privileged members of the first generation). But if, as Kymlicka’s account implies, it is unproblematic for descendants of immigrants and national majorities to be members of a state to which they did not consent (perhaps on the condition that the state is liberal), it must be similarly normatively unproblematic for national minorities and groups with historic agreements to be compelled to liberalize. Certainly, it does not make sense to hold back on the requirement to liberalize on the grounds of individual choice.

Once again, then, a liberal argument that recognizes the cultural construction of choice ends up relying on choice to make crucial normative distinctions, and problematically uses choice to assess the justice of a culture that has been shown itself to shape the very ability to choose. I do not wish to suggest that choice and autonomy play no normative role: I agree with Kymlicka that some commitment to autonomy is necessary for liberalism. But I do argue that arguments based on choice cannot justify certain sorts of restrictions that are imposed on individuals or disadvantages that they may suffer.

Part Two thus considers alternative liberal ways of approaching the connection between sex, culture, and justice. I consider different liberal and liberal feminist ways of understanding the connection between choice and justice in the context of social construction. Although this book cannot hope to offer a comprehensive analysis of contemporary liberalism, it considers a range of views, focusing on those liberals who, for varied reasons, share something with my approach. My intention is to show that while each form of liberalism goes some way toward securing universal freedom and equality in the face of social construction, no one approach goes far enough. In their place I offer my own.

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