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Justice and GenderAuthor(s): Susan Moller OkinReviewed work(s):Source: Philosophy & Public Affairs, Vol. 16, No. 1 (Winter, 1987), pp. 42-72Published by: Wiley-BlackwellStable URL: http://www.jstor.org/stable/2265205 .
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SUSAN MOLLEROKIN Justiceand Gender
Theories of justice are centrally concerned with whether, how, and why
persons should be treateddifferentlyfrom each other. Which initial or
acquired characteristicsor positions in society, they ask, legitimize dif-
ferential treatmentof persons by social institutions, laws, and customs?
In particular,how should beginnings affect outcomes?The division ofhumanity into two sexes would seem to provide an obvious subject for
such inquiries.We live in a societyin whose past the innate characteristic
of sex has been regarded as one of the clearest legitimizers of different
rights and restrictions, both formal and informal. While the legal sanc-
tions that upholdmale dominancehave beentosome extent erodedwithin
the past century, and more rapidly n the last twenty years, the heavy
weight of tradition, combined with the effects of socialization broadly
defined, still workpowerfully o reinforceroles for the two sexes that are
commonly regardedas of unequal prestige and worth.' The sexual di-vision of laborwithin the family, in particular,s not only a fundamental
part of the marriage contract, but so deeply influences us in our most
formativeyears that feminists of both sexes who try to reject it find
An earlierversionof thisarticlewaspresentedatthe 8othAnnualMeetingof theAmericanPoliticalScienceAssociation,August30-September2, i984 inWashington,D.C. I gratefullyacknowledgethe helpfulcomments of the followingpeople: RobertAmdur,PeterEuben,RobertGoodin,Anne Harper,RobertKeohane,CarolePateman,John Rawls,Nancy Ro-senblum, RobertSimon, QuentinSkinner,MichaelWalzer,IrisYoungand the EditorsofPhilosophy&PublicAffairs.Thanks alsoto LisaCarisellaand ElaineHerrmann ortypingthe manuscript.
i. On the history of the legal enforcement of traditional ex roles and recent changestherein, see LeoKanowitz,SexRoles n Lawand Society(Albuquerque:Universityof NewMexicoPress, I973, and I974 Supplement),esp. pts. 2, 4, 5; also Kenneth M. Davidson,Ruth Bader Ginsburgand Herma Hill Kay,Sex-BasedDiscrimination (St. Paul: WestPublishing Co., I974, and I978 Supplementby WendyWilliams),esp. chap. 2.
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43 Justice and Gender
themselves struggling against it with varying degrees of ambivalence.
Based on this linchpin, the deeply entrenchedsocial institutionalization
of sex difference,which I will refer to as the gender system or simply
gender, till permeatesour society.
This gender system has rarelybeen subjected to the tests of justice.
When we turn to the great traditionof Western politicalthought with
questions about the justice of gender in mind, it is to little avail. Boldfeminists like Mary Astell, Mary Wollstonecraft,Harriet Taylor, and
GeorgeBernardShaw have occasionallychallenged the tradition,often
using its own premises and argumentsto overturn ts justificationof the
unequal treatmentof women. But John StuartMill is a rareexception to
the rule that those who hold central positions in the traditionalmost
never questioned the justice of the subordinationand oppression of
women. This phenomenon is undoubtedlydue in part to the fact that
Aristotle,whose theoryof justice has been so influential,relegatedwomen
and slaves to a realm of household ustice, whose participantsare notfundamentallyequal to the free men who participate n political ustice,
but inferiors whose naturalfunction is to serve those who are morefully
human.The liberal radition,despiteits supposed oundationof individual
rights and human equality, is more Aristotelian n this respect than is
generallyacknowledged.2 n one way or another,liberalshave assumed
that the individual who is the basic subjectof theirtheoriesis the male
head of a patriarchalhousehold.3Thus the applicationof principlesof
justice to relationsbetween the sexes, orwithin the household, has fre-
quently been ruled out from the start.Otherassumptions,too,contribute o the widespreadbeliefthat neither
women nor the familyareappropriateubjects fordiscussions of justice.
One is that women, whether because of their essential disorderliness,
their enslavement to nature, their privateand particularistnclinations,
or their oedipaldevelopment,are incapableof developinga sense of jus-
tice. This notioncan be found-sometimes brieflysuggested, sometimes
2. See Judith Hicks Stiehm, The Unit of PoliticalAnalysis:Our AristotelianHangover,
in SandraHardingandMerrillB. Hintikka, ds., DiscoveringReality:FeministPerspectives
on Epistemology,Metaphysics,Methodology,nd Philosophy f Science Dordrecht:Reidel,I983), pp. 3I-43.
3. See CarolePatemanand TheresaBrennan, 'MereAuxiliarieso the Commonwealth';
Women and the Originsof Liberalism, oliticalStudies27, no. 2 (June I979): I83-200;
also Susan MollerOkin, Womenand the Makingof the SentimentalFamily, Philosophy
& Public Affairs i i, no. i (Winter I982): 65-88.
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44 Philosophy& PublicAffairs
developedat greater ength-in theworksoftheorists romPlatotoFreud,including Bodin,John Knox,Rousseau,Kant,Hegel and Bentham.4Thefrequent implicationis that those who do not possess the qualificationsfor fully ethical reasoning or action need not have principlesof justiceappliedto them. Finally,in Rousseau (as so often, original)we find theunique claim that woman, being madeto submit to man and even toput up with his injustice, s imbued
innatelywith a capacityto toleratethe unjust treatmentwith which she is likely to meet.5Forthosewho arenot satisfiedwiththese reasons forexcludingwomen
and gender from the subject matter of justice, the great traditionhaslittle to offer,directly at least, to our inquiry.When we turn to contem-porarytheories of justice, however,we can expect to find more illumi-nating and positivecontributions o the subject of gender and justice. Iturn to two such theories,John Rawls'sA TheoryofJustice and MichaelWalzer'sSpheresofJustice, to see what they say orimplyin response tothe question Howjust is gender? 6
JUSTICE AS FAIRNESS
An ambiguityruns throughoutJohn Rawls'sA TheoryofJustice, contin-uallynoticeableto anyonereadingit from a feministperspective.On theone hand, as I shall argue below, a consistent and wholeheartedappli-cation of Rawls's iberalprinciplescan leadus tochallengefundamentallythe gender system of our society.On the otherhand, in his own accountof his theory, this challenge is barelyhinted at, much less developed.The majorreasonis that throughoutmost of the argument, t is assumed(as throughout almost the entire liberal tradition)that the appropriate
4. See Nannerl0. Keohane, FemaleCitizenship:The MonstrousRegimentofWomen,presented at the AnnualMeetingof the Conferencefor the Study of PoliticalThought,April6-8, I979, on Bodin,John Knoxand Rousseau;CarolePateman, 'The DisorderofWomen';Women,Love,and The Sense of Justice, Ethics 8i, no. i (October 980): 20-
34, on Rousseauand Freud;Susan MollerOkin, Thinkingike a Woman, unpublishedms., I984, on PlatoandHegel;TerenceBall, Utilitarianism,eminismandthe Franchise:James Milland his Critics, History of PoliticalThought , no. i (Spring I980): 9I-II5,
on Bentham.
5. Jean-JacquesRousseau,Emile, n OeuvresCompletes (Paris:Pleiade, 969), pp.734-35, 750.
6. John Rawls, A TheoryofJustice (Cambridge,MA:HarvardUniversityPress, I97I),
hereafterreferredto as Theory;MichaelL. Walzer,SpheresofJustice (New York:BasicBooks,I983), hereafterreferred o as Spheres.
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45 Justice and Gender
subjects of politicaltheoriesare heads of families.As a result, although
Rawls indicates on several occasions that a person's sex is a morally
arbitrary nd contingent characteristic,and althoughhe states explicitly
that the familyitself is one of those basic socialinstitutionsto which the
principlesof justice must apply,his theoryofjustice failstodevelopeither
of these convictions.
Rawls,like almostallpoliticaltheoristsuntilveryrecentyears,employs
supposedlygenericmale termsof reference. Men, mankind, he and
his are interspersedwith nonsexist terms of reference such as indi-
vidual and moralperson. Examplesof intergenerationalconcern are
wordedin terms of fathers and sons, and the difference principleis
said to correspondto theprincipleof fraternity. 7 his linguistic usage
wouldperhapsbe less significantif it were not for the fact that Rawlsis
self-consciouslya member of a long traditionof moraland politicalphi-
losophy that has used in its argumentseither such supposedlygeneric
masculine terms, or even more inclusive terms of reference ( human
beings, persons, allrationalbeings as such ),onlyto exclude women
fromthe scope of the conclusionsreached. Kant s a clear example.8But
when Rawlsrefers to the generalityand universalityof Kant'sethics, and
when he comparesthe principleschosen in his own originalpositionto
those regulative of Kant's kingdom of ends, actingfrom [which] ex-
presses our nature as free and equal rational persons, 9he does not
mention the fact that women were not includedin that categoryof free
and equal rationalpersons, to which Kantmeant his moral theory to
apply.Again, in a brief discussion of Freud'saccount of moraldevelop-
ment, Rawlspresents Freud's theoryof the formationof the male super-
ego in largelygender-neutral erms,withoutmentioningthat Freud con-
sideredwomen'smoraldevelopmentto be sadlydeficient, on account of
their incomplete resolution of the Oedipus complex.IoThus there is a
certain blindness to the sexism of the traditionin which Rawls is a
participant,which tends to render his terms of reference even more
ambiguousthan they might otherwisebe. A feminist readerfinds it dif-
ficult not to keep asking: Doesthis theoryofjustice applyto women, or
not?
7. Theory,pp. Io5-Io6, 208-209, 288-89.
8. See Okin, Womenand the Makingof the SentimentalFamily, pp. 78-82.
9. Theory,pp. 25I, 256.
io. Ibid., p. 459.
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46 Philosophy&PublicAffairs
This question is not answeredin the importantpassages that list the
characteristics hatpersonsin the originalpositionare not to knowabout
themselves, in order to formulate impartialprinciples of justice. In a
subsequentarticle,Rawlshas madeit clear that sex is oneof those morally
irrelevantcontingencies that is to be hidden by the veil of ignorance. ,
But throughoutA Theoryof Justice, while the list of things unknown by
a person in the original positionincludes
his place in society, his class positionor social status, . .. his fortune
in the distributionof naturalassets and abilities,his intelligence and
strength, and the like, ... his conceptionof the good, the particulars
of his rationalplan of life, [and]even the special features of his psy-
chology. 12
his sex is not mentioned.Since the partiesalso know he generalfacts
about human society, 'I3resumably ncluding the fact that it is struc-
tured along the lines of gender both by custom and by law, one might
think that whether or not they knew their sex might matter enough to
be mentioned. PerhapsRawls means to cover it by his phrase andthe
like, but it is also possible that he did not considerit significant.
The ambiguity s exacerbatedby Rawls'sstatementthat those free and
equalmoralpersonsin the originalpositionwho formulate he principles
of justice are to be thought of not as singleindividuals but as heads
of families or representatives f families. '4He says that it is not nec-
essaryto think of the partiesas heads offamilies,but that he will generally
do so. The reason he does this, he explains,is to ensure that each person
in the originalpositioncaresaboutthe well-beingof some personsin the
next generation.These tiesof sentiment between generations,which
Rawlsregardsas important n the establishmentof his just savingsprin-
ciple, would otherwise constitute a problem,because of the general as-
sumption that the partiesin the originalpositionare mutuallydisinter-
ested. In spite of the ties of sentiment within families, then, as
representativesof families their interests are opposed as the circum-
stances of justice imply. '5
ii.
Fairnessto Goodness, PhilosophicalReview84 (1975): 537. He
says:Thatwe
have one conceptionof the goodrather han another s notrelevant roma moralstandpoint.
In acquiring t we are influencedby the same sortof contingenciesthat lead us torule out
a knowledgeof our sex and class.
I2. Theory,p. I37; see also p. I2. I3. Ibid., p. I37.
I4. Ibid., pp. I28, I46. I5. Ibid.,p. I28; see alsop. 292.
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47 Justice and Gender
The head of a familyneed not necessarily, of course, be a man. The
very fact, however, that in common usage the term female-headed
households is used only in reference to households without residentadult males, tends to suggest that it is assumed that any present maleadult takes precedence over a female as the household or familyhead.
Rawls does nothing to dispel this impressionwhen he says of those inthe originalposition that imaginingthemselves to be fathers, say, theyare to ascertain how much they should set aside for theirsons by notingwhat they would believe themselves entitled to claim of theirfathers. ''6He makes the heads of families assumption only in order to address
the problemof savings between generations, and presumablydoes notintend it to be a sexist assumption. Nevertheless, Rawls, is effectivelytrappedby this assumptioninto the traditionalmode of thinkingthat life
within the family and relationsbetween the sexes are not properly o beregarded as partof the subject matter of a theory of socialjustice.
BeforeI go on to argue this, I must firstpointout that Rawlsstates atthe outset of his theory that the family is partof the subject matter of
social justice. Forus he says,
the primarysubject of justice is the basic structureof society, ormore
exactly, the way in which the majorsocial institutions distributefun-
damentalrights and duties and determine the divisionof advantagesfrom social cooperation.'7
He goes on to specify themonogamousfamily as an example of such
majorsocialinstitutions, togetherwith the politicalconstitution,the legalprotectionof essential freedoms,competitivemarkets,and privateprop-
erty.The reason that Rawls makes such institutions the primary ubjectof his theoryof social justice is that they have such profoundeffects on
people's lives from the start,depending on where they find themselves
placed in relation to them. He explicitly distinguishes between these
majorinstitutions and other privateassociations, less comprehensivesocial groups, and variousnformalconventions and customs of every-day life, i8 for which the principlesof justice satisfactory or the basic
structuremight be less appropriate r relevant. Thereis no doubt, then,that in his initial definition of the sphere of socialjustice, the family is
i6. Ibid., p. 289. I7. Ibid., p. 7.
i8. Ibid., p. 8.
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48 Philosophy& PublicAffairs
included.19The two principles of justice that Rawls defends in Part I,
the principleof equal basic liberty,andthe differenceprinciplecombined
with the requirementof fair equalityof opportunity, re intended toapply
to the basic structure of society. They are togovern the assignment of
rights and duties and to regulate the distributionof social and economic
advantages. 20Whenever n these basic institutions there are differences
in authority,in responsibility, n the distributionof resources such as
wealth or leisure, these differencesmust be both to the greatestbenefit
of the least advantaged,and attachedto positions accessible to all under
conditionsof fair equalityof opportunity.
In PartII, Rawls discusses at some length the applicationof his prin-
ciples of justice to almostall of the majorsocial institutions listed at the
beginning of the book. The legal protectionof freedomof thought and
libertyof conscience is defended, as are just democratic constitutional
institutionsand procedures;competitivemarkets featureprominently n
the discussion of the just distributionof income; the issue of the private
or public ownership of the means of production s explicitly left open,
since Rawls argues that justice as fairness might be compatiblewith
certain versions of either. But throughoutthese discussions, the question
of whether the monogamous family,in either its traditionalor any other
form,is a just socialinstitution,is neverraised.When Rawls announces
that thesketchof the system of institutions thatsatisfythe twoprinciples
of justice is now complete, 21he has still paid no attention at all to the
internal justice of the family. The family, in fact, apart from passing
references, appears n A Theory of Justice in only three contexts: as the
linkbetween generationsnecessaryfor the savings principle,as apossible
obstacle to fair equality of opportunity-on account of inequalities
amongst families-and as the first school of moraldevelopment.It is in
the thirdof these contexts thatRawlsfirstspecificallymentions thefamily
as a just institution.He mentionsit, however,not to considerwhether or
not the family insome form s a just institution,but to assume it. Clearly
regardingit as important, Rawls states as partof his firstpsychological
ig.It is interesting to note that in a subsequentpaperon the questionwhy the basic
structureof societyis the primary ubjectofjustice, Rawlsdoes notmention the familyaspartof the basicstructure. TheBasic Structureas Subject, AmericanPhilosophicalQuar-terly I4, no. 2 (April 977): I59.
20. Theory,p. 6i.
21. Ibid.,p. 303.
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49 Justice and Gender
law of moral development: giventhat familyinstitutionsare just. . . )22
Clearly,however, by Rawls'sown reasoningabout the socialjustice of
major nstitutions, this assumption s unwarranted.For the centraltenet
of the theory is that justice characterizesinstitutions whose members
could hypotheticallyhave agreed to their structureand rules from a po-
sitionin which they didnot know which place in the structurethey were
to occupy. The argument of the book is designed to show that the two
principlesof justice as fairness are those that individuals n such a hy-
pothetical situation would indeed agree upon. But since those in the
originalpositionare the heads orrepresentativesof families, they are not
in a position to determine questions of justice within families.23As faras children are concerned, Rawls makes a convincing argument from
paternalism or theirtemporarynequality.But wives (orwhicheveradult
member[s] of a family are not its head )go completelyunrepresented
in the originalposition.If families are just, as Rawls assumes, then they
must get to be just in some differentway (unspecified by Rawls) than
other institutions, for it is impossible to see how the viewpointof their
less advantagedmembers ever gets to be heard.
There are two occasions where Rawlsseems either to departfrom his
assumption that those in the original position are familyheads or to
assume that a headof a family s equally likely to be a woman as a
man. In the assumptionof the basic rights of citizenship, Rawlsargues,
favoringmen over women is justifiedby the difference principle ...
only if it is to the advantageof women and acceptablefromtheir stand-
point. 24 Later,he seems to imply that the injustice and irrationalityof
racist doctrines are also characteristicof sexist ones.25But in spite ofthese passages, which appear o challengeformalsex discrimination, he
discussions of institutions in Part II implicitlyrely, in a number of re-
spects, on the assumptionthat the partiesformulating ust institutions
22. Theory,p. 490. See DeborahKearns, ATheoryofJustice-and Love;Rawls on theFamily, Politics (AustralasianPoliticalStudiesAssociationJournal) 8, no. 2 (NovemberI983): 39-40 for an interestingdiscussion of the significance of Rawls's ailure to addressthe justice of the familyfor his theoryof moraldevelopment.
23. AsJane English says, in a paperthat is morecentrallyconcernedwith the problemsof establishing Rawls'ssavings principlethan with justice within the family per se: Bymaking the parties n the originalpositionheadsof families rather hanindividuals,Rawlsmakesthefamilyopaque o claims of justice. JusticebetweenGenerations, hilosophicalStudies 3I (1977): 95.
24. Theory,p. 99.25. Ibid., p. I49.
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50 Philosophy& PublicAffairs
are (male) heads of (fairly traditional)families, and are thereforenotconcerned with issues of just distributionwithin the family. Thus the
4head f family assumption,farfrombeing neutralorinnocent, has theeffect of banishing a large sphereof humanlife-and a particularlyargesphere of most women's lives-from the scope of the theory.
First,Rawls'sdiscussion of the distributionof wealth seems to assumethat all the partiesin the originalpositionexpect to be, once the veil ofignorance is removed,participants n the paidlabormarket.Distributiveshares are discussed in terms of household income, but reference to
individuals s interspersed nto this discussion as if there were no dif-ference between the advantageor welfareof a household and that of anindividual,26 his confusionobscuresthe fact thatwages arepaidto thosein the laborforce but that in societies characterizedby a gender system(all current societies) a much largerproportionof women's than men'slabor s unpaid,andis oftennoteven acknowledged obelabor. tobscuresthe fact that such resulting disparitiesand the economicdependence ofwomen on men are likelyto affectpowerrelationswithin the household,as well as access to leisure, prestige, politicaloffice, and so on amongstits adult members. Any discussion of justice within the family wouldhave to addressthese issues.
Later,too, in his discussion of the obligationsof citizens, Rawls'sas-sumptionthatjustice is theresultofagreementamongst headsoffamiliesin the originalpositionseems to preventhim fromconsideringan issueof crucial importanceto women as citizens-their exemption from thedraft.He concludes thatmilitaryconscription s justifiablein the case ofdefense against an unjust attack on liberty, so long as institutions tryto make sure that the risks of sufferingfromthese imposedmisfortunesare more orless evenly sharedby all membersof societyover the courseof their life, and that there is no avoidableclass bias in selecting thosewho arecalledforduty. 27However, he issue of the exemptionofwomenfrom this majorinterferencewith the basic libertiesof equal citizenshipis not even mentioned.
In spite of two explicit rejectionsof the justice of formal sex discrim-inationin PartI, then, Rawlsseems in PartII to be so heavily influenced
by his familyheads assumptionthat he fails to consider as partof thebasic structure of society the greatereconomic dependence of women
26. Ibid.,pp. 270-74, 304-309. 27. Ibid.,pp. 38o-8I (emphasisadded).
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5I Justice and Gender
and the sexual division of labor within the typicalfamily, or any of the
broadersocial repercussionsof this basic genderstructure. Moreover,n
Part III, where Rawls assumes the justice of the family in some form
as a given, althoughhe has not discussed anyalternative orms,he sounds
very much as though he is thinking in terms of traditional,gendered
family structure.The family, he says, is a small association, normally
characterizedby a definitehierarchy, n which each member has certain
rights and duties. 28 he family'srole as moral teacher is achievedpartly
through parental expectations of the virtues of a good son or a good
daughter. 29n the family and in other associations such as schools,
neighborhoods,and peer groups, Rawls continues, one learns various
moralvirtuesandideals, leadingto those adopted n the various statuses,
occupations,and familypositionsof later ife. Thecontent of these ideals
is given by the variousconceptions of a goodwife and husband, a good
friend and citizen, and so on. 30It seems likely, given these unusual
departures from the supposedly generic male terms of reference used
throughout the rest of the book, that Rawls means to imply that the
goodness of daughtersis distinct fromthe goodnessof sons, and that of
wives fromthat of husbands.A fairlytraditionalgender system seems to
be assumed.
However, despite this, not only does Rawls, as noted above, assume
that the basic structureof a well-orderedsociety includes the family in
someform. He adds to this the comment that in a broader nquirythe
institution of the family might be questioned, and other arrangements
mightindeedproveto bepreferable. 31Butwhyshould trequirea broader
inquiry than that engaged in in A Theory of Justice, to ask questions
about the institution of the family? Surely Rawls is right at the outset
when he names it as one of those basic social nstitutionsthat mostaffects
the life chances of individuals.The family s not a privateassociation ike
a church ora university,which vary considerablyn type,andwhich one
can join and leave voluntarily.Foralthoughone has some choice (albeit
highly constrained)aboutmarrying nto a gender-structuredamily,one
has no choice at all aboutbeing born nto one. Giventhis, Rawls'sfailure
to subject the structureof the family to his principlesof justice is par-
ticularlyserious in the light of his belief that a theory of justice must
take account of how[individuals]get to be what they are and cannot
28. Ibid., p. 467. 29. Ibid.30. Ibid., p. 468. 31. Ibid., pp. 462-63 (emphasis added).
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52 Philosophy& PublicAffairs
take their final aims andinterests, theirattitudesto themselves and their
life, as given. 32For the familywithits genderstructure, emaleparenting
in particular,s clearlya crucialdeterminant n the differentsocialization
of the two sexes-in how men and women getto be what they are.
If Rawlswere to assume throughout he constructionof his theorythat
all human adults are to be participants n what goes on behind the veil
of ignorance, he would have no optionbut to requirethat the family,as
a major social institution affecting the life chances of individuals, be
constructed n accordancewith the twoprinciplesof justice. Iwill develop
this conclusion in the final section of the paper.But first I will turn to
another recent theory of justice which is argued very differentlyfrom
Rawls's,and poses anotherset of problems roma feministpointof view.
JUSTICE IN ITS SEPARATE SPHERES
MichaelWalzer'sSpheresofJustice is remarkable mongstcontemporary
theoriesofjustice forthe attentionthatits authorpaysto sex- andgender-
related issues. From its largelynon-sexist language to its insistence that
the family constitutes a significant sphereof justice and its specific
references to power imbalances between the sexes and discrimination,
Walzer'stheory stands out in contrast to most moral and politicalphi-
losophers' continued indifference to feminist issues. Viewing the book
through the prism of gender, however, accentuates both its strengths
and its weaknesses. The theoreticalframeworkof separatespheres that,
in a just society,must allowfor different nequalitiesto exist side by side
without creating a situationof domination,has considerableforce as a
tool for feminist criticism. But I will argue that, to the extent that this
criticismis developedand emphasized,it calls into questionthe cultural
relativismthat is so essential a partof Walzer's heoryof justice. And to
the extent that the relativismflourishes,it seriouslyblunts the impactof
the theory'sfeminist potential.
At the beginning of Spheresof Justice, Walzer sets out the aims of his
theory:
I want to argue ... that the principlesof justice are themselves plu-ralistic in form; that differentsocial goods ought to be distributedfor
differentreasons, in accordancewith differentprocedures,bydifferent
32. The Basic Structureas Subject, p. i6o.
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53 Justice and Gender
agents; andthatall these differencesderivefromdifferentunderstand-ings of the social goodsthemselves-the inevitableproductofhistoricaland culturalparticularism.33
Within this briefsummaryare containedtwo criteria orjustice, criteriathat, I will argue, are not only quite distinct but in serious tension witheach other. I will first summarizeWalzer's separate pheres argument
and his relativist or particularistposition, and will then show how theconflict between them is readily apparentin the context of issues ofgender and theirjustice or injustice.
It is one of Walzer'sfundamentaltheses thatjustice does not requirethe equal distributionof social goods within theirrespectivespheresbut,rather, hatthese spheresofdistributionbe keptautonomous, n the sensethatthe inequality hatexists withineach shouldnotbe allowed o translateitselfintoinequalitieswithinthe others.In principle,boththe monopolybyone or a few persons of a socialgoodor goods within a single sphere,and
the dominance of a goodover the commandof other goodsoutside of itssphere, are threats to social justice. But because of his convictionthatmonopolys impossible o eliminatewithoutcontinualstate intervention,34Walzer concerns himself primarilywith the elimination of dominance.His critiqueof dominanceleads to the adoptionof the distributiveprin-ciple that nosocialgoodx should be distributed omen andwomen whopossess some other good y merely because they possess y and withoutregardto the meaning of x. 35The result of the adoptionof this principlewouldbe a society whosejustice consistedin the distributionof different
goods to different companies of men and women for differentreasonsand in accordance with differentprocedures. 36This conception ofjustice as dependingon the autonomyof the various
spheres of distribution s presented by Walzeras acriticalprinciple-indeed, . . . a radicalprinciple. 37 number of his specific applicationsof the principle-notably to the issue of workerownershipand controlofall but small-scale enterprises38-confirm this view, and when we turnto the feminist implications of the separatespheres criterion of justice,we shall see that they, too, can be interpretedas establishing the needfor radicalsocial change. Walzer
saysthat
the standards ordistributionthat the criterionestablishes
33. Spheres, p. 6. 34. Ibid., pp. I4-I7.
35. Ibid., p. 20. 36. Ibid., p. 26.
37. Ibid., p. io. 38. Ibid., pp. 29I-303.
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54 Philosophy& PublicAffairs
are oftenviolated,the goodsusurped,the spheresinvaded, bypowerfulmen and women.
In fact, the violationsaresystematic.... Forallthe complexityof theirdistributive rrangements,mostsocietiesareorganized nwhatwe mightthinkof as a socialversionof the goldstandard: ne good or one set ofgoods is dominant and determinativeof value in all the spheres ofdistribution.And that good or set of goodsis commonlymonopolized,
its value upheld by the strength and cohesion of its owners.39
Having thus indicated the extent to which the spheres of justice cri-terionis commonlyviolated,Walzergoes on to show howideology s usedto legitimate such violations.Operating n the service of a group'sclaimtomonopolizea dominantgood, itsstandard orm s toconnectlegitimatepossession with some set of personalqualitiesthrough the medium of aphilosophicalprinciple. 40utWalzerregards deologies, ikeconceptionsof justice, as pluralistic.In his view, groups using differentideological
principles to justify their dominance competewith one another,strug-gling for supremacy.One groupwins, and then a differentone; or coa-litions are worked out, and supremacyis uneasily shared. There is nofinal victory,nor should there be. 4I If this is an accurate depiction ofthe past andpresent situation n oursociety, it softens the critical mpactof Walzer's first criterion of justice, for it is difficult to see how thedominance and monopolythat he finds characteristicof most societiescould coexist with genuinelycompetingpluralistic deologies.But beforeexamining it further,we must turn to his second criterion.
Walzerasserts clearlyfromthe start that his theoryofjustice is highlyrelativistor, as he puts it, radically articularist. 42eyondrights to lifeandliberty,he argues, men's andwomen'srights donot follow from ourcommonhumanity;they followfromsharedconceptionsof social goods;they arelocal andparticularn character. 43Justice he says, is relativeto social meanings. . . . A given society is just if its substantive life is
lived... in awayfaithfulto the sharedunderstandingsofthe members. 44And since social meanings are historical in character, . . . distributions,
and just and unjust distributions,change over time. 45
In the course of establishing and emphasizing the cultural relativism39. Ibid.,p. io. 40. Ibid.,p. I2.
4I. Ibid. 42. Ibid.,p. xiv.43. Ibid.,p. xv. 44. Ibid.,PP.3I2-I3.
45. Ibid.,p. 9.
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of his theory of justice, Walzertakes issue with philosopherswho leave
the city [to] fashion . .. an objective and universal standpoint. 46n par-
ticular, he argues with Rawls's developmentof a theory of justice that is
not tied to a particularculture, that does not issue from the sharedun-
derstandings or agreements of actual historical human beings with full
knowledge of who they are and where they are situatedin society.While
he seems not to disagree that things would be decided by rational ubjectsbehindthe veil ofignorancemuch as Rawlsconcludes,he is unconvinced
of the significance or force of the principlesof justice agreed upon in
such a situationfor those same human beings once they are transformed
into ordinary eople, with a firm sense of their own identity, with their
own goods in their hands, caught up in everydaytroubles. Would they
reiterate heirhypotheticalchoice or even recognizeit as theirown [?] 47
If conclusions about justice are to have force, hey must be principles
chosen not in some such hypothetical situation, but in answer to the
question:What would individuals like us choose, who are situated as we are,
who share a culture and are determined to go on sharing it? And this
is a question that is readily transformed nto, What choices have we
alreadymade in the course of our common life? What understandings
do we (really) share?48
A distinct lack of critical perspective seems to be embodied in this
highly relativist criterionfor the justice of social arrangementsand dis-
tributions.If all that Walzerwere to mean bya
conclusion'sora
system'shaving force were that they were more readily enforceable,he would
undoubtedly be right to reject Rawls's method. But he clearly means
more than this. Forhe says that Rawls'sformulafordeciding principles
of justice behind the veil of ignorance doesn'thelp verymuch in deter-
mining what choices peoplewillmake,or what choicestheyshouldmake,
once they know who and where they are. 49He means, then, that the
principlesof justice chosen in a Rawlsian mannerdo not have any par-
ticular moral force. To the contrary, t is only when philosophers ...
write out of a respect forthe understandingsthey share with their fellow
citizens [that] they pursue justice justly. 50
46. Ibid., p. xiv. 47. Ibid.,p. 5; see also p. 79.48. Ibid.,p. 5. 49. Ibid.,p. 79 (emphasisadded).50. Ibid., p. 320.
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56 Philosophy& PublicAffairs
A multitude of complexities, however, is contained within Walzer's
reliance on sharedunderstandings. Forhe does not want to construct
a theoryof justice that is completelyuncriticalof whateverdistributions
take place and are justified within any given society. He says that the
socialvisionhe seeks is latent already .. in our sharedunderstandings
of social goods, and that the goal . . . is a reflection of a special kind,
which picksup those deeperunderstandingsof social goods which are
not necessarilymirroredn the everydaypracticeof dominanceand mo-
nopoly. 51But how is it to be determined which understandings we
(really)share, deep, latent, and not necessarilymirrored n our prac-
tices?
Walzer'sreliance on two distinct criteriafor justice- the separate
spheres standardandthe sharedunderstandings r socialmeanings
standard-creates considerabletension within his theory.There seems
to be only one way of preventingthe two criteria romyielding different
conclusions aboutwhat is just, andthatis to arguethatoursharedsocial
understandingsaboutissues of justice do in fact satisfy the criterionof
separatespheres. In spite of passages such as that quoted on p. 54
above, Walzer at times appearsto believe this to be the case. He says
that if a just oregalitariansociety isn'talreadyhere-hidden, as it were,
in our concepts and categories-we will never know it concretely or
realize it in fact, and adds that ourconceptions ... do tend steadilyto
proscribethe use of things for the purposesof domination. 52
Walzer's wo criteria orjustice aresubjectedto most strain n relation
to each other in the case of fundamentallyhierarchicalsocieties, those
in which dominanceand monopolyare not violationsbut enactments
of meaning, where social goodsareconceivedin hierarchical erms. He
chooses feudal and caste societies, particularlythe latter, in order to
explore the challenge posed by such societies to his assumption that
socialmeanings call for the autonomy, or the relative autonomy, of
distributivespheres. 53 uch systems, he says, are
constituted by an extraordinary ntegration of meanings. Prestige,
wealth, knowledge, office, occupation,food, clothing, even the social
goodof conversation:all aresubject to the intellectualas well as to thephysical disciplineof hierarchy.54
5I. Ibid.,pp. xiv, 26 (emphasis added). 52. Ibid.,pp. xiv-xv.
53. Ibid.,p. 26. 54. Ibid., p. 27.
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57 Justice and Gender
The hierarchy itself is determined by a single value-in the case of the
caste system, ritual purity, dominated by birth and blood-which domi-
nates over the distributionof all other goods, so that social meanings
overlapand cohere, 55osing their autonomy.In such systems, Walzer
says, the moreperfect the coherence of social meanings, the ess possible
it is even to think about complex equality and justice will come to the
aid of inequality. 56 evertheless, as he must in measuring them against
his shared understandings or social meanings criterion for justice,
he asserts unambiguously hat such societies can meet (internal) tand-
ards of justice. 57By this criterion, indeed, there are no grounds for
concluding that caste societies are any less just than societies that do
not discriminateon the basis of inborn status or characteristics.
Walzerwrites of caste societies, with their undifferentiated ocial mean-
ings, as if they were distant from anything that characterizesour culture.
It is only on this assumption that he is able to perceive his two criteria
for a just society as not seriously n conflictin the contemporary ontext.
But when we read his description of caste society, in which an inborn
characteristic determines dominantor subordinatestatus in relationto
socialgoods over the whole range of spheres,it can be seen tobear strong
resemblances to the gender system that our society has only begun to
shed formallywithin the last century, and that it still perpetuates to a
largeextent throughthe force of its economic structureandcustom, and
the ideology inherited from its highly patriarchalpast. There seem, in
fact, to be only two significant differences between caste and gender
hierarchies:one is that women havenot been physicallysegregatedfrom
men; the otheris that, whereas Walzersays that politicalpowerseemsalways to have escaped the laws of caste, 58t has only rarely escaped
the laws of gender. Like the caste hierarchy,the gender hierarchyis
determinedby a single value-sex-with maleness taking the place of
ritual purity. Like the hierarchyof caste, that of gender ascribes roles,
responsibilities, rights, and other social goods in accordance with an
inborn characteristicthat is imbued with tremendous significance. All
the socialgoodslistedin Walzer'sdescriptionof a caste societyhave been,
and many still are, differentiallydistributedto the members of the two
sexes. In the cases ofprestige, wealth, knowledge,office,andoccupation,this statement is fairly obviously true, although the disparitiesbetween
55. Ibid. 56. Ibid., pp. 27, 3I3.
57. Ibid., p. 3I5. 58. Ibid., p. 27.
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58 Philosophy& PublicAffairs
the sexes have begun to decline in some of them in recent years. Better
and greateramounts of food are often reservedfor men in poor classes
and cultures, women's clothing has been and still is to a large extent
designed either to constrict theirmovementsor to appealto men rather
than for their own comfort and convenience, and women have been
excluded from men's conversationin numerous social contexts, from
ancient Greece to nineteenth- and twentieth-centuryafter-dinnercon-
versationsand men's clubs.59
As in caste societies, ideologyhas playeda crucialpart n perpetuating
the legitimacyof patriarchy.Though Walzersays in the context of caste
societythat we shouldnot assume that men and women areeverentirely
content with radical nequality, 6oideologyhelps us to comprehendthe
extent to which they often have been and are content.Taking the gender
system as an example, if the family is founded in law and custom on
male dominance and female subordinationand dependence, if religion
inculcates the same hierarchyand enhances it with the mystical and
sacredsignificanceof a male god, andif the educationalsystem not only
excludes women from its higher reaches but establishes as truth and
reason the same intellectual foundationsof patriarchy, he opportunity
for a competing deologyaboutsex andgenderto arise s seriously imited.
In fact, the ideologythat is embodied n what has recently been termed
male-stream houghtis undoubtedlyone of the most all-encompassing
and pervasiveexamples of ideologyin history.6'
Walzerrelies, for the possibilityof social change in general, on the
flourishingof dissent. In most societies, even if
the ideologythatjustifies the seizure [ofsocialgoods] s widelybelieved
to be true, . . . resentment and resistance are (almost) as pervasiveas
belief.There arealwayssomepeople,andaftera time there area great
many, who think the seizure is not justice but usurpation.62
59. In a passagein which his nonsexistlanguage strainscredibility,Walzersays that in
differenthistoricalperiods, ominantgoodssuch as physical trength, amilialreputation,
religiousor political office, landed wealth, capital, technicalknowledge have each been
monopolizedby some group of men and women (Spheres,p. i i). In fact, men have
monopolized hese goods to the exclusionof women (andstillmonopolize omeof the most
importantones) to at least as great an extent as any group of men and women has
monopolized hem to the exclusionof any other group.6o. Spheres,p. 27.
6i. This phrasewas coined by MaryO'Brien n The Politics of Reproduction London:
Routledgeand Kegan Paul, 198I).
62. Spheres,p. 12.
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59 Justice and Gender
But the closer the social system is to a caste system, in which social
meanings overlapand cohere, the less likely is the appearance or de-
velopment of such dissent. The morethoroughgoing he dominance, and
the more pervasive ts ideologyacross the variousspheres,the less chance
there is that the whole prevailingstructurewill be questionedorresisted.
By arguingthat such a system can meet (internal) tandardsofjustice
if it is really accepted by its members, Walzeradmits the paradoxthat
the more unjust a system is by one of his criteria(in that dominance isall-pervasivewithin it) the more likely it is to be able to enshrine the
ideology of the ruling group and hence to meet his other criterion(that
it is in accordwith sharedunderstandings).The dangerof his conception
of justice is that what is just depends heavily on what people are per-
suaded of.63
Even if the social meanings in a fundamentallyhierarchicalsociety
were shared,we should surelybe waryof concluding, as Walzerclearly
does, that the hierarchy was renderedjust by the agreement or lack of
dissent.64But what if the oppressorsand the oppressed disagree funda-mentally?What if the oppressorsclaim, as they often have, that aristo-
crats, or Brahmins,or men are fully human in a way that serfs, or un-
touchables, or women are not, and that while the rulers institutionalize
equal justice amongst themselves, it is just for them to requirethe other
categoriesof people to performfunctions supportiveof the fully human
existence of those capableof it? And what if the serfs or untouchables
orwomen somehow actuallydo become convinced(against all the odds)
that they too are fully human and that whatever principles of justice
apply amongst their oppressors should rightfullybe extended to themtoo? With disagreements this basic, rather than a meaningful debate
being joined, therewouldseem to be twoirreconcilableheories ofjustice.
There would be no shared meanings on the most fundamental of ques-
tions.
This problem s renderedeven morecomplexif there are fundamental
63. See BernardWilliams, The Idea of Equality, n Philosophy,Politics and Society(Second Series), ed. PeterLaslett and W. G. Runciman(Oxford:BasilBlackwell,I962),
pp. II9-20, for a succinct discussion of socialconditioningand the justification of hier-
archicalsocieties,criticalof a positionsuch as Walzer akes.NormanDanielshas recentlycriticizedWalzeron thisissue in areview ofSpheresofJustice, n ThePhilosophicalReviewXCIV,no. I (January 985): I45-46.
64. See RonaldDworkin'sreview of Spheres of Justice, in New YorkReviewof Books(AprilI4, I983), pp. 4-5, and Walzer'sresponse in New YorkReviewof Books (July 2I,
I 983).
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6o Philosophy & Public Affairs
disagreementsnot only between the oppressorsand the oppressed,but
even within the ranks of the oppressed.Contemporary iews about the
gender system are a clear example of such disagreement.As studies of
feminism and antifeminismhave shown, women themselves are deeply
dividedon the subject of the gender system, with antifeministwomen
not rejecting it as unjust, but regarding the continued economic de-
pendence of women and the dominance of the worldoutside the homeby men as natural and inevitable, given women's special reproductive
functions.65 Even amongst feminists, there has grown a rift in recent
yearsbetween those who see the gendersystemitself as the problemand
lookforward o an androgynous ociety,andthosewho, celebratingwom-
en's unique nature and traditional oles, considerthe problemto be not
the existence of these roles but the devaluationof women'squalitiesand
activities by a male-dominatedculture.66These oppositepoles of opinion
about the very nature of sex differenceand its appropriate ocial reper-
cussions seem to provideno shared intellectual structure in which to
debatedistributions.AndWalzer's heoryofjustice providesno criterion
for adjudicatingbetween them, aside from an appeal to some deeper,
latent understandings which all supposedly hold, beneath their disa-
greements.
As I pointed out above, the coherence of Walzer'stheory of justice
depends on the compatibilityof his two criteriaof justice, which in turn
depends upon whether the shared understandingsof a society call for
the autonomyof differentdistributive pheres.I have alsosuggested that
contemporary ocietyis still sufficientlypervadedbythe caste-likegender
systemthatfullycharacterized ts pastthat tdoesnot fulfill thiscondition.
65. For a recent analysisof such attitudes,see KristinLuker,Abortionand the Politics
of MotherhoodBerkeley:Universityof California ress,I984), esp. chap.8. Feminists end
to attribute uch attitudes n partat least to the influence of patriarchaldeology; t is clear
that religion is an important actor. Such an antifeministposture becomes increasingly
difficultto maintainconsistently,once feminist reforms are instituted. For then, female
proponentsof it are faced with the problemof how they are to be successful in reversing
politicalchangewhile maintainingwhat theybelieve tobe theirproper,politically owerless
role.
66. For a fair and lucid account of this division,see Iris MarionYoung, Humanism,Gynocentrismand FeministPolitics, Hypatia:A Journalof Feminist Philosophyno. 3, a
special ssue of Women's tudies InternationalForum8, no. 3 (I985): I73-83. Gynocentric
feminism faces a similarproblem o that faced by antifeminism:Howcan women'swork,
concerns and perspectivescome tobe properly alued,unless womenseek and attainpower
in the predominant,malerealm?
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6i Justice and Gender
While at times Walzer seems forgetful of our patriarchalhistory,67hesometimes shows clear awareness of its currentmanifestations. At thebeginning of his chapter on recognition,for example,he states that theargument to follow appliesonly in partto women. The extent to whichwomen are stilldesignatedanddefined bytheirpositionwithinthe family,he says,is symbolizedbythe continueduse ofthe titles Miss nd Mrs. :
the absence of a universal title suggests the continued exclusion ofwomen, or of many women, fromthe social universe, the sphere of rec-ognition as it is currentlyconstituted. 68 ut this point-that the argu-ment applies only in part to women, or to a few women-is equallyapplicable to almost all of the other spheres of justice discussed in thebook. Politicalpower and office, hard work, money and commodities,security-is anyofthese thingsevenlydistributedbetweenthe twosexes?Surelyin each case, the explicit or implicitassignment of women to thefunctional role of actual or potentialwife and mother and, as primarynurturer, to basic dependence upon a man, has a great deal to do withthe fact that women are, in general, less benefited by the benefits andmore burdenedby the burdens,in the distributionof most social goods.While Walzeroccasionally extends the feminist perspective he displaysin the argument on recognition,and developsbrieflya section entitled
TheWomanQuestion, he frequentlyoverlooks ts implications.
Introducinghis discussion of the oppressionof women, Walzerarguesthat therealdominationofwomenhas less to dowith theirfamilialplacethan with their exclusion from all other places. The family disfavorswomen by imposing sex-rolesupon many activities to which sex is en-
tirely rrelevant. Liberation romthis political nd economicmisogynybegins outside of the family.The marketmust set no nternal barto the
participationof women. 69 But, as he seems to imply, in the context ofthe example of nineteenth-centuryChina, it cannot end outside: Thefamily itself must be reformed so that its powerno longer reaches intothe sphereof office oranyof the otherspheresofdistribution,we mightadd).70On anumberofoccasions,bothwithinhis section on TheWomanQuestion and elsewhere, Walzercriticizes the operationof the gender
67. See note 59 above.68. Spheres,p. 252. See alsoWilliamSafire, OnLanguage, nd the Editors' esponse,
New York Times Magazine, Sunday,August 5, I984, pp. 8-io. In I986, the New YorkTimesfinally agreed to use the term Ms. n certain circumstances.
69. Spheres,pp. 240-4I. 70. Ibid., p. 240.
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62 Philosophy&PublicAffairs
system outside of the family.But he pays almost no attentionto its con-tinued operationwithin.
This lacuna is certainlynot attributable o a belief that justice is notan appropriatemoralvirtueforfamilies.ForWalzer,althoughhe perceivesthe family as asphereof specialrelationships, 71lsoassertsplainlythat
the sphere of personalrelations,domesticlife, reproduction,and child-
rearingremains .., the focus of enormously mportantdistributions, 72and where there are distributions,whether of responsibilities,rights,favorsor goods, there is potentialforjustice and injustice. He does not,however, give this importantsphere of distribution he attention t wouldseem to warrant. While all kinds of hard (undesirablebut necessary)work done forwages arediscussed at some length, virtuallyno attentionis paid to all the unpaidwork,much of it hard by his definition,thatis done by women at home, and he refers only brieflyto the immenselytime-consuming activity of child care. If his argument were not in so
many respects egalitarian, one mightsuppose
that heaccepted,as a less egalitarianthinker mnight, aid domestic laborfor those who
could afford t as the solutionto these demandson wives and/ormotherswho chose to work, to seek recognition,politicalpower or office, and soon, in the outside world. But this is clearlynot an acceptable solution,since he regards families with live-in servants as inevitably .. littletyrann[ies], and considersdomestic serviceof any sort to be degradedwork.73n an egalitarian ociety, at anyrate,he considersthat the marketwill raise the wages of unskilledworkersmuch closer to those of skilledones than at present,with the desirableresult thatworkerswill be muchless likely to take on such degradedwork.74To compoundthe problemsof workingcouples with children,he disapprovesof the communal careof young childrenas likelyto result in a greatloss of love, except in a
small, close-knit society such as the kibbutz.75This is reiteratedin a
passage in which he talks of childrenbeing abandoned o bureaucraticrearing. 76
How, then, is the unpaid work that is currentlydone almost entirelyby women within the household to be done in a society that regardsthefamily, and relationsbetween the sexes in particular,as an appropriate
sphere for the operationsof justice? Walzer'sanswers to this question
71. Ibid.,p. 229. 72. Ibid.,p. 242.
73. Ibid., p. 52. 74. Ibid., pp. 179-80.75. Ibid., p. 233n. 76. Ibid., p. 238.
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63 Justice and Gender
are so rapidlywhisked over,in a clause and a footnoterespectively,that
they are easily missed. In the chapter on hard work-which is mostly
concerned with hardwage work(also, as he points out, largelydone by
women)-he suggests that the only answer to hard, and particularly o
dirty, work in a society of equals is that atleast in some partialand
symbolic sense, we will all have to do it. 77Otherwise,those who do it
will be degraded by it and will never be equal members of the politicalcommunity. What s required,then, is a kind of domestic corv6e,not
only in households-though it is especially important here-but also in
communes, factories,offices, and schools. 78 hus in a societyof equals,
atleast in some partialand symbolic sense, houseworkwill be shared,
regardless of sex. And, while child care is a different matter, since it
hardlymeets his negative definitionof hardwork at least, most of the
time), Walzersuggests the same solution.Parenthetically,n a footnote,
he asks (whycan't the parents share in social reproduction?) 79
With one important proviso,8o would affirm that these solutions (if
the sharing is real and completeratherthan symbolic)representthe only
way in which the injustices inherentin the traditionalgender-structured
familycan be done awaywith. Until the unpaidandlargelyunrecognized
work of the household is shared equally by its adult members, women
will not have equal opportunitieswith men eitherwithin the familyorin
any of the other spheres of distribution-from politicsto free time, from
77. Ibid., p. 174. 78. Ibid.,p. 175.
79. Ibid., p. 233n. The importanceof shared childrearing orjustice between the sexesis not due to its being undesirablework, or in favorable ircumstances t can beimmenselychallenging and pleasurable.It is the immensely time-consumingnature of childrearing,and the everpresenceof its demands, hat make tsjust distribution ssential.WhileWalzerasserts that free time is not readily convertible nto other social goods (p. I84), I wouldstronglydissent. The kind of free time that one does not have when primarilyor solelyresponsible orsmall children s translatablento manythings, including education,careeradvancementand recognition, he pursuitofpoliticalofficeandwealth,as well as just plainleisure. On the other hand, those who do not share in parentingto a substantialextentcould be said to suffer injustice in the sense that they miss out on its own specialsocialrewards,the experiences of intimacywith and nurturing ove for a child.
8o. Walzer s tooquickto dismissdaycarefor smallchildrenas a partialsolution. Evena masssociety does not have toprovide mass day care.Itcan provide mall-scale, oving
day care for all if it cares enough and is prepared o subsidizethe full costs for parentsunable to affordthem. Goodday care, besides being a positiveexperiencefor the child,also helps to solve two otherproblems:without it, the shared parenting solution is of nohelp at all to single parents, of whom there are increasingnumbers, mainly women; andgood, subsidized day care can help to alleviate the obstacle that the inequalityof familysituationposes for equalityof opportunity.
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64 Philosophy& PublicAffairs
recognition to security to money. This sharing is necessary if Walzer's
separate spheres criterionfor justice is to be met-if a society of equal
men and women is to distribute ts social goodsin such a way that what
happenswithin the family s not to dominateover,to invade,all the other
spheres of justice. But, on the otherhand (and perhapsthis is why it is
so rapidly brushed past in the argument), this solution constitutes a
radicalbreaknot only fromprevailingpatternsof behaviorbut alsofrom
widely, though not completely, shared understandings of our society
about the social meanings of sex and gender.It constitutes no less than
the abolitionof genderin its most entrenchedbastion,with likelyrever-
berationsthroughoutall social spheres. Only if it could be argued that
deep or latent in oursharedcurrent understandings ies the justification
for the total abolitionof gender could Walzerclaim that his solution to
sex inequalityis just by his relativistcriterion.
Thus the paradoxof Walzer's heoryof justice is strikinglyexemplified
by the theory'sfeminist implications.Insofaras the reduction of domi-
nation requiresa thoroughgoing eminismthatunderminesthe veryroots
of ourgendered nstitutions, t is in considerable ensionwiththerelativist
requirementthat a just society is one that abides by its shared under-
standings. And insofaras the lattercriterion s applied,the feminist im-
plicationsof the theorylose their force, on account of the deeplyrooted
attitudesabout sex differencesthat we have inheritedfromourpast and
continue to imbibefrommany aspects of our culture.
WOMEN AND JUSTICE IN THEORY AND PRACTICE
I have arguedthatWalzer's equirement hatjustice berelativeto shared
understandings or socialmeanings tends to conflictwith his separate
spheres criterionof justice. It is also inadequateas a foundationfor a
moraltheory.On someimportantssues in contemporaryociety-gender
in particular-there are no fully shared understandings.To the extent
that understandings are in fact shared in this or any existing society,
their influence may be due to the past or present hegemony of certain
groupsoverothers.Moreover,divisionsbetween conservativeandradical
standpointson such issues may be so deep that they provide ittle foun-
dation from which the differentparties, situated as they actually are,
can come to any conclusions about what is just. The significance of
Rawls's central, brilliantidea of the original position, in which one's
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65 Justice and Gender
characteristicsandposition n societyarenot known, is thatit forces oneto question sharedunderstandingsfrom all points of view, and ensuresthatthe principlesofjustice chosen areacceptable oeveryone,regardlessof what positionhe ends up in.
The problemfor a feminist readerof Rawls'stheoryas statedby Rawlshimselfhowever, s encapsulated n thatambiguous he. AsIhaveshown
above, while Rawls brieflyrules out formal,legal discriminationon thegrounds of sex (as on other groundsthat he regardsas morallyrrele-vant ), he fails entirely to address the justice of the gender system,which-with its rootsin the sex roles of the familyand with its branchesextending into virtuallyevery cornerof our lives-is one of the funda-mental structures of our society. If, however,we read Rawls taking se-riouslyboththe notion thatthose behindthe veil of ignorancearesexlesspersons, and the requirementthat the familyand the gender system-as basic social institutions-are to be subject to scrutiny, constructivefeminist criticism of these
contemporarynstitutionsfollows.So, also, dohidden difficulties for a Rawlsiantheoryofjustice in a genderedsociety.I will explain each of these points in turn. But first, both the critical
perspective and the incipient problemsof a feminist reading of Rawlscan perhapsbe illuminatedbya descriptionof a cartoonI saw a few yearsago. Three elderly,robedmale justices are depicted,looking down withastonishment at theirverypregnantbellies. One says to the others,with-out furtherelaboration: Perhapswe'd betterreconsiderthat decision.This illustrationpointsto severalthings. First, t graphicallydemonstratesthe importance, n thinkingaboutjustice, of a concept like Rawls's
orig-inal position,which makes us put ourselves nto the positionsof others-especially positionsthatwe ourselvescan never be in. Second,it suggeststhat those thinking in such a way might well conclude that more thanformallegal equalityof the sexes is required f justice is to be done. Aswe have seen in recent years, it is quite possible to institutionalize theformal legal equality of the sexes and at the same time to enact lawsconcerningpregnancy,abortion,maternity eave, andso on, that in effectdiscriminate against women, not as women per se, but as pregnantpersons. The U.S. Supreme Court decided in 1976, for example, that
anexclusion of pregnancyfrom a disabilitybenefits plan ... providinggeneral coverage is not a gender-baseddiscriminationat all. 8I One of
8i. GeneralElectric vs. Gilbert,429, U.S. I25 (1976).
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67 Justice and Gender
and sex. Gender, as I have defined it in this article,with its ascriptive
designation of positionsand expectationsof behavior n accordancewiththe inborn characteristicof sex, could no longer form a legitimate partof the social structure,whether inside oroutside the family.Three illus-trationswillhelp to link this conclusionwith specificmajorrequirementsthat Rawlsmakes of a just or well-ordered ociety.
First, afterthe basicpolitical iberties,one ofthe mostessentiallibertiesis theimportant iberty of free choice of occupation. 84t is not difficultto see that this liberty s compromisedby the assumption and customary
expectation, central to our gender system, that women take far greaterresponsibility than men for housework and child care, whether or notthey also work for wages outside the home. In fact, both the assigningof these responsibilitiesto women-resulting in their asymmetricaleco-nomic dependency on men-and also the relatedresponsibilityof hus-
bands to supporttheir wives, compromisethe libertyof choice of occu-
pation of both sexes. While Rawls has no objectionto some aspects ofthe division of labor,he asserts that, in a well-orderedsociety, no oneneed be servilely dependenton others and made to choose between mo-notonous and routine occupations which are deadening to human
thoughtandsensibility butthat workcan be meaningful or all. 85 heseconditions arefarmorelikelyto be met in a societywhich does not assignfamilyresponsibilities n a way thatmakes women into a marginalsectorof the paid work force and renders likely their economic dependenceupon men.
Second, the abolitionof gender seems essential for the fulfillment ofRawls's criteriafor politicaljustice. For he argues that not only would
equal formalpoliticallibertiesbe espoused by those in the originalpo-
sition, but that any inequalities in the worth of these liberties (for ex-
ample, the effects on them of factors like povertyand ignorance) mustbejustifiedbythe differenceprinciple.Indeed, theconstitutionalprocessshould preserve the equal representationof the originalposition to the
degreethatthis is practicable. 86 hileRawlsdiscusses thisrequirementin the context of class differences, stating that those who devote them-
selves to politics should be drawnmore or less equallyfrom all sectorsof society, 87t is just as clearly applicableto sex differences. And the
84. Ibid.,p. 274. 85. Ibid.,p. 529.
86. Ibid.,p. 222; see alsopp. 202-205, 22I-28.
87. Ibid., p. 228.
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68 Philosophy& PublicAffairs
equal political representationof women and men, especially if they are
parents, is clearlyinconsistent with our gender system.
Finally, Rawls argues that the rational moralpersons in the original
position would place a great deal of emphasis on the securing of self-
respect or self-esteem. They wouldwish to avoid at almost any cost the
social conditions hat undermineself-respect, whichis perhapshe most
important of all the primarygoods.88 n the interests of this primary
value, if those in the originalpositiondid not know whether they were
to be men or women, they would surely be concerned to establish a
thoroughgoing social and economic equality between the sexes that
would preserveeither fromthe need to panderto or servilelyprovidefor
the pleasuresof the other. They would be highly motivated, orexample,
to find a means of regulating pornography hat did not seriously com-
promisefreedom of speech. In general, theywould be unlikelyto tolerate
basic social institutionsthat asymmetrically ither forcedor gave strong
incentives to members of one sex to become sex objects for the other.
There is, then, implicitin Rawls's theory of justice a potentialcritique
of gender-structured ocial institutions, which can be made explicit by
taking seriously the fact that those formulatingthe principlesof justice
do not know their sex. At the beginning of my brief discussion of this
feminist critique, however,I made an assumptionthat I said would later
be questioned-that a person's sex is, as Rawls at times indicates, a
contingentandmorally rrelevantcharacteristic, uch that human beings
can hypothesize ignoranceof this fact aboutthem, imaginingthemselves
as sexless, free and equal, rational,moralpersons. First, I will explain
why, unless this assumptionis a reasonable one, there are likely to befurther feminist ramifications or a Rawlsiantheoryof justice, as well as
those I have just sketched out. I will then argue that the assumptionis
very probablynot plausible in any society that is structuredalong the
lines of gender.The conclusionI reach is that not only is the disappear-
ance of gender necessary if social justice is to be enjoyedin practice by
members of both sexes, but that the disappearanceof gender is a pre-
requisitefor the completedevelopmentof a nonsexist, fully human theory
of justice.
Although Rawls is clearlyawareof the effects on individualsof theirdifferentplaces in the social system, he regards t as possibleto hypoth-
88. Ibid.,pp. 440, 396; see also pp. I78-79.
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69 Justice and Gender
esize free and rationalmoral persons in the originalposition who, freed
from the contingencies of actual characteristicsand socialcircumstances,
willadoptthe viewpointof the representative uman being. He is under
no illusions about the difficultyof this task, which requires a great shift
in perspective from the way we think about fairness in everyday life.
But with the help of the veil of ignorance,he believes that we can take
up a point of view that everyone can adopt on an equal footing, so that
we share a common standpointalong with others and do not make our
judgments froma personalslant. 89 he result of this rational mpartiality
or objectivity, Rawls argues, is that, all being convinced by the same
arguments, agreement about the basicprinciplesof justice will be unan-
imous.90He does not mean that those in the originalposition will agree
about all moral or social issues, but that complete agreement will be
reached on all basic principles, or essentialunderstandings. 9s t is a
crucial assumption of this argument forunanimity,however, that all the
partieshave similarmotivationsandpsychologies(he assumes mutually
disinterested rationalityand an absence of envy), and that they have
experienced similar patterns of moraldevelopment (they are presumed
capable of a sense of justice). Rawls regards these assumptions as the
kind of weak stipulations on which a general theory can safely be
founded.92
The coherence of Rawls's hypotheticaloriginalposition,with its una-
nimityof representativehuman beings, however, s placedin doubt f the
kinds of human beings we actuallybecome in society not only differin
respect of interests, superficial opinions,prejudices, and points of view
that we can discard for the purposeof formulatingprinciplesof justice,
but also differ in their basic psychologies,conceptionsof self in relation
to others, and experiences of moral development.A number of feminist
scholars have argued n recent yearsthat,in a gender-structured ociety,
women's and men'sdifferent ifeexperiencesin fact affect theirrespective
psychologies, modes of thinking, and patternsof moraldevelopmentin
significant ways.93Special attention has been paid to the effects on the
89. Ibid.,pp. 5I6-I7. 90. Ibid., pp. I39-4I.
9I.Ibid., pp.
5I6-I7. 92. Ibid., p. I49.
93. Majorworks contributing o this thesis are Jean BakerMiller,Towarda New Psy-
chologyof Women Boston:BeaconPress, I976); DorothyDinnerstein,TheMermaidand
the Minotaur(New York:Harperand Row,I977); Nancy Chodorow,TheReproduction f
Mothering Berkeley:Universityof CaliforniaPress, I978); CarolGilligan,In a Different
Voice(Cambridge,MA:HarvardUniversityPress, I982); Nancy Hartsock,Money,Sex,
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70 Philosophy& PublicAffairs
psychological and moral development of both sexes of the fact, funda-
mental to our gendered society, that children of both sexes areprimarily
reared by women. It has been argued that the experience of individua-
tion-of separatingoneself from the nurturerwithwhom one is originally
psychologicallyfused-is a very different experience for girls than for
boys, leaving the members of each sex with a different perception of
themselves and of their relations with others. In addition, it has been
argued that the experience of being primarynurturers (and of growing
up with this expectation) also affects the psychologicaland moral per-
spective of women, as does the experience of growingup in a society in
which members of one's sex are in many respects subordinate to the
other. Feminist theorists' scrutiny and analysis of the different experi-
ences thatwe encounter as we develop, from ouractual lived lives to our
absorptionof theirideologicalunderpinnings,have in valuablewaysfilled
out de Beauvoir'sclaim that one is not born, but rather becomes, a
woman. s4
Whatis alreadyclearly ndicatedby these studies,despite their incom-pleteness so far, is that in a gender-structured ociety there is such a
thing as the distinctstandpointofwomen, and that this standpointcannot
be adequatelytaken into account by male philosophersdoing the theo-
reticalequivalentofthe elderlymalejustices in the cartoon.The formative
influence on small children of female parenting, especially, seems to
suggest thatsex difference s morelikelyto affectone'smoralpsychology,and thereforeone's thinking aboutjustice, in a gendered society than,
for example, racial differencein a society in which race has social sig-
nificanceorclass difference n aclass society.Thenotion of the standpointof women, while not without its own problems, suggests that a fully
humanmoraltheorycanbe developedonly when there is fullparticipation
by both sexes in the dialoguethatis moralandpoliticalphilosophy.This
will not come to pass until women take their place with men in the
enterprise n approximately qualnumbers and n positionsofcomparable
and Power(New York:Longmans,I983). Two of the more mportantndividualpapersareJane Flax, The Conflictbetween Nurturanceand Autonomyn Mother-DaughterRela-tionshipsand withinFeminism, Feminist Studies 4, no. 2 (Summer I978); SaraRuddick,
MaternalThinking, Feminist Studies 6, no. 2 (Summer I980). A good summaryanddiscussion of women'sstandpoint s presentedin AlisonJaggar,Feminist Politics andHuman Nature (Totowa,NJ: Rowmanand Allanheld, 983), chap. i i.
94. Simonede Beauvoir,TheSecondSex (I949; reprint d.,London:New English Library,I 969), p. 9.
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71 Justice and Gender
influence. In a society structuredalong the lines of gender, this is most
unlikely to happen.
In itself, moreover, t is insufficient for the complete developmentof a
fully human theoryof justice. For f principlesof justice are to be adopted
unanimously by representativehuman beings ignorantof theirparticular
characteristicsand positionsin society, they must be persons whose psy-
chologicaland moraldevelopment s in allessentialsidentical.This means
that the social factors influencing the differences presently found be-
tween the sexes-from female parenting to all the manifestationsof fe-
male subordinationand dependence-would have to be replacedby gen-
derless institutions and customs. Only when men participateequallyin
what has been principallywomen's realm of meeting the dailymaterial
and psychological needs of those close to them, and when women par-
ticipate equally n what have been principallymen'srealms of larger scale
production,government, and intellectual and creative ife, will members
of both sexes developa morecompletehumanpersonality han has hith-
erto been possible. Whereas Rawls and most other philosophershave
assumed that human psychology,rationality,moraldevelopmentand so
on arecompletelyrepresentedbythe males of the species, thisassumption
itself is revealedas a part of the male-dominated deologyof our gendered
society.
It is not feasible to indicatehere at any length what effect the consid-
eration of women's standpointmight have on a theoryof justice. I would
suggest, however, that in the case of Rawls's theory, it might place in
doubt some assumptionsand conclusions, while reinforcingothers. For
example, Rawls's discussion of rationalplans of life and primarygoods
might be focused more on relationshipsandless exclusivelyon the com-
plex activities that his Aristotelian rinciple values most highly, if it
were to encompass the traditionallymore female parts of life.95On the
otherhand, those aspects of Rawls's theory, such as the differenceprin-
ciple, that seem to requirea greatercapacityto identifywith othersthan
is normally characteristicof liberalism,might be strengthenedby refer-
ence to conceptions of relations between self and others that seem in a
gendered society to be more predominantly emale.
In the earlier stages of working on this article, I thought mainly in
95. Brian Barryhas made a similar, though more general,criticismof the Aristotelianprinciple n The LiberalTheoryof Justice (Oxford:OxfordUniversityPress, I973), pp. 27-
30.
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72 Philosophy & Public Affairs
terms of what justice has to say about gender, rather than about the
effects of gender on justice. I looked at two recent theories of justice from
this perspective, and found that althoughWalzer's ocused far more at-
tention on women's place in society, it was in fact Rawls's that could
moreconsistently yield feminist principlesof justice when the standpoint
of women was taken into account. But, given the reliance of this latter
theory on the agreement of representativehuman beings about the basic
moral principles that are to govern their lives, I conclude that, while we
can use it along the way to critique existing inequalities, we cannot
complete such a theory of justice until the life experiences of the two
sexes become as similar as their biologicaldifferences permit. Such a
theory, and the society that puts it into practice, will be fundamentally
influenced by the participationof both women and men in all spheres of'
human life. Not only is gender incompatiblewith a just society but the
disappearanceof gender is likely to lead in turn to importantchanges'in
the theory and practices of justice.