Many women, in non-Western countries, are forced (by law, by their husbands and fathers, indeed by female relatives) to engage in harmful (to themselves) practices or ways of life, such as the renunciation of economic opportunities outside the home, the loss of property through marriage, genital mutilation, and so on. Many women, in Western democracies, appear to choose harmful courses of actions, such as undergoing painful and debilitating cosmetic surgery, wearing mobility-impairing clothes and footwear, foregoing employment opportunities to devote themselves to looking after their children, and so on.
Liberals, including liberal feminists, are more likely to ask for the legal prohibition of the former than of the latter, on the grounds (in part) that they are not the product of freely informed choices. In so far as the protection of free choice – sometimes referred to as autonomy – from legal restrictions is central to liberalism, liberalism (according to those theorists) ought not to ban (e.g) breast implants; it should be similarly wary of state intervention in cultural practices which are harmful to women, at least in those cases where women appear to have chosen to remain in those particular cultures.
Clare Chambers' book, Sex, Culture and Justice, is a thoughtful, interesting and at times provocative challenge to the view I have just described. She is sceptical of its reliance on free-choice, for the simple reason that individuals' choices, far from being free, are profoundly shaped by prevailing social norms. So are the options from which individuals can choose. When those norms work to the more or less systematic detriment of a particular group – in this case, women – we ought not to take choices made by individuals within that group at face value.
At first sight, this is blindingly obvious. Chambers' book is particularly interesting, however, in that it shows, at times masterfully, the extent to which liberals pay insufficient attention to the influence of social norms on choices. Its aim is to articulate and defend a liberal political theory which accounts for, and counteracts, that influence, whilst at the same time preserving individual autonomy.
The book is divided into two parts. Part One discusses theories of social construction such as Foucault's and Bourdieu's and argues that Anglo-American philosophers have much to learn from them. Part Two uses those findings to defend two principles: (a) a liberal state can and must intervene in cultural practices which systematically disadvantage women; (b) it can and must constrain allegedly free choices which have seriously harmful consequences for their authors. The book ends with a spirited defence against the charge that the proposals are unacceptably paternalistic, and thus incompatible with the ideal of autonomy which is said to motivate them.
I believe that this is an important book. For a start, Part One is an original attempt to show that Anglo-American normative theory and continental social theory have far more in common than is often thought, and have much to learn from each other. Very few first-rate analytical thinkers this side of the divide engage with social theorists: Chambers is a notable exception, and if only for that reason, her contribution should serve as a model for any endeavour of this kind. Open-minded analytical philosophers are shown that one can use the tools of that particular trade (conceptual clarity and logical thinking) and at the same time find much of value in the writings of Bourdieu and Foucault. Similarly open-minded social theorists are shown, for their part, that it is possible to say something about that school of thought without having to sacrifice philosophical rigour.
Fortunately, closed minds (methodologically speaking) on either side will also find much to think about in this book – not least its detailed treatment on a number of contemporary thinkers such as Barry, Shachar, Nussbaum and Friedman. Moreover, its strength lies not merely in the author's mastery of two disparate intellectual traditions, but also in its cogent and provocative defence of a number of proposals. Its central claim is that women's choices and options are profoundly and pervasively shaped by social norms which result in gender inequality; accordingly, a liberal state cannot wash its hands of the resulting injustices on the grounds that they stem from free choices.
The book discusses two kinds of such choices and options: choices and options as to be made, and found, within cultural groups – particularly religious groups; autonomous choices for particular ways of life which result in loss of autonomy within that way of life. In both cases, Chambers claims, state intervention is warranted, under certain conditions.
Let us take the first kind of choices, and consider the following – and very familiar – three scenarios: a married woman decides to give up her career to look after her children, and thus forego future employment opportunities, financial independence, pension rights, etc; an Orthodox Jewish woman who chooses to marry under Orthodox Jewish law and then wishes to divorce her abusive husband is denied a divorce by the latter unless she foregoes custody of her children and maintenance payment (by contrast, he would not need her consent to get a divorce); a Catholic woman is denied the opportunity to be ordained as a priest by the Catholic Church. Many liberal theorists are reluctant to advocate state intervention in the latter two cases, and to condemn as unjust the resulting inequality between the woman and her husband in the former case. Chambers argues that they are misguided. Not only are all three women victims of an injustice: the state should step in, by offering them wider educational and economic opportunities (such as retraining options after several years of childcare, a salary for bringing up their children, etc.) More controversially, the state should intervene in religious discriminatory practices as found both in employment cases (such as the Church's refusal to ordain women) and within the family (such as highly unequal treatment of men and women in Orthodox Jewish law.)
I find Chambers' treatment of gender-based access to priesthood persuasive – particularly her rejection (contra Barry) of the view that gender must be accepted by liberals as necessarily intrinsic to religious practices. Her treatment of discriminatory private law systems strikes me as more problematic. On her view, a religious group could not apply different legal requirements, with respect to marriage and divorce, to men and women. Should it do so, its disadvantaged members should have the opportunity to seek redress in front of an ‘equality tribunal’. The tribunal, modelled on employment tribunals, would overrule discriminatory rulings by religious courts, order the latter to pay financial compensation for such rulings, and so on. In such a liberal society, religious divorce law would have no legal validity.
Chambers convincingly shows that the case for the equality tribunal is even stronger than the case for employment tribunals (again, contra Barry). Her arguments against Shachar's multi-jurisdictional proposal are equally strong. However, in practice, her solution does not add much (it seems to me) to the ‘exit solution’. Under the exit solution, the secular law does not override religious law, and women can choose which one to adopt. Now, Chambers criticises the exit solution for not acknowledging that those choices are, precisely, shaped by social norms which systematically disadvantage women, not least because they make it very difficult for women to leave the group (in that instance, by choosing the secular law.) Yet, she is at pains to stress that the equality tribunal would intervene only at the women's request, so as to ensure the preservation of women's liberty, and a degree of adequation between liberal intervention and the culture in question. I find that rather puzzling. To be sure, a policy of intervention is more likely to succeed if it is adopted cautiously, and with sensitivity, and in any event a liberal ought not to endorse forcible divorce. But then, the only difference between the equality tribunal solution and the exit solution is that the latter recognises religious divorce law as valid, while the former does not. Whilst important theoretically and normatively speaking, this difference does not strike me as practically significant: if those women are subject to as severe social pressures as Chambers argues, they are as unlikely to go to an equality tribunal as to exit from their group by asking that the secular law be applied to their case.
As I noted above, Chambers also discusses autonomous choices for particular ways of life which result in loss of autonomy within that way of life. When assessing whether someone is autonomous, she claims, one needs to see whether they freely chose a way of life (second-order autonomy), and whether, within that life, they live by norms and practices which they freely endorse (first-order autonomy). Thus, a woman who freely chooses to be a nun is second-order autonomous; but if she then unthinkingly submits to the considerable strictures of conventual life, she ought to be regarded as first-order non-autonomous. Chambers criticises liberal feminists such as Nussbaum for privileging second-order autonomy at the expense of first-order autonomy, and for inconsistently advocating the ban of practices such as FMG even when those are accepted by adult women. According to Nussbaum, if an individual is second-order autonomous, then the state ought not to take a stand (especially not a coercive stand) on her lack of first-order autonomy, however harmful to her the latter is. Take, then, the case of a woman who chooses to remain in her community (and is thus second-order autonomous), in full knowledge that, as a result, she will have no choice but to undergo FMG (at the cost, therefore, of her first-order autonomy – something which she would much rather not do.) Nussbaum should allow FMG in that case, yet she explicitly advocates its ban. As Chambers shows, this is incoherent: what in fact justifies the ban on adult FMG must be gender equality.
At the heart of Chambers' criticism of Nussbaum's line of argument (a line taken by many feminists) is the claim that second-order choices are themselves shaped by inequality-promoting social norms. Her discussion, at this juncture, dovetails with her treatment of religious discrimination against women with respect to marriage and divorce. But its most controversial feature is the application of Nussbaum's argument for the prohibition on FMG to a Western practice (which feminists are much less likely to want banned), to wit, breast implants. For breast implants, Chambers tell us, are extremely harmful to women in the long run; moreover, women who choose to have them are influenced by norms of female beauty and sexuality which are disrespectful of women. If those considerations suffice to justify banning adult FMG, then they suffice to justify banning breast implants. Many, I suspect, will baulk at this proposal – particularly in so far as it applies to doctors (who should be liable to prosecution), but not to the women themselves. In particular, Chambers' claim that her proposal is not unduly paternalistic will need further defence if it is to convince Millean liberals. For in effect, she advocates prosecuting physicians on the grounds that they are severely harming women in adherence to injustice-producing norms, and exonerating women from prosecution on the grounds that they are the harmed party (even though they consent to being harmed.) However, it is hard to see how one could justify prosecuting physicians other than by appealing to the good of women – a good which is deemed important enough to override their consent. On any plausible definition of paternalism, this is a paternalistic proposal, all the more so as it does not treat women as fully responsible, morally and legally, to the same extent as it does treat physicians. It might be that, as Chambers suggests, paternalism is justified, at least in some cases, by justice. I cannot help thinking, however, that the book would have benefitted at this crucial juncture from a fuller treatment of the relationship between paternalism and liberal conceptions of justice.
None of those points should detract from the qualities of the book. It is a very valuable contribution to many different bodies of work (liberal theory, multiculturalism, feminism, and social theory); equally importantly, however, it should generate interesting and further debates on the role of the state in promoting gender equality.
