justice and gender

8/12/2019 Justice and Gender

http://slidepdf.com/reader/full/justice-and-gender 1/32

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 .

Accessed: 27/08/2012 15:12

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of

content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms

of scholarship. For more information about JSTOR, please contact [email protected].

.

Princeton University Press and Wiley-Blackwell are collaborating with JSTOR to digitize, preserve and extend

access to Philosophy & Public Affairs.

http://www.jstor.org

http://www.jstor.org/action/showPublisher?publisherCode=black

http://www.jstor.org/stable/2265205?origin=JSTOR-pdf

http://www.jstor.org/page/info/about/policies/terms.jsp

http://www.jstor.org/page/info/about/policies/terms.jsp

http://www.jstor.org/stable/2265205?origin=JSTOR-pdf

http://www.jstor.org/action/showPublisher?publisherCode=black



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.



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.



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.




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.



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.




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.




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.




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.




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).



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).




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.




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.




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.




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.




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.




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.




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.




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).



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?



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.



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.




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.




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




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).




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.




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.




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,




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.




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.



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.

justice and gender

Documents