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[/MP 1,3 (2004) 293-309] ISSN 1740-4681

Rawls and Feminism:

What Should Feminists Make of Liberal Neutrality?

ELIZABETH BRAKE

Department of Philosophy University of Calgary 2500 University Drive NW Calgary, AB T2N 1N4 Canada brake@ucalgary.ca

I argue that Rawls's liberalism is compatible with feminist goals. I focus primarily on the issue of liberal neutrality, a topic suggested by the work of Catharine MacKinnon, I discuss two kinds of neutrality: neutrality at the level of justifying liberalism itself, and state neutrality in political decision-making. Both kinds are contentious within liberal theory, Rawls's argument for justice as fairness has been criticized for non- neutrality at the justificatory level, a problem noted by Rawls himself in Political Liberalism. I will defend a qualified account of neutrality at the justificatory level, taking an epistemic approach to argue for the exclusion of certain doctrines from the justificatory process, I then argue that the justification process I describe offers a justificatory stance supportive of the feminist rejection of state-sponsored gender hierarchy. Further, I argue that liberal neutrality at the level of political decision-making will have surprising implications for gender equality. Once the extent of the state's involvement in the apparently private spheres of family and civil society is recognized, and the disproportionate influence of a sexist conception of the good on those structures—and concomitant promotion of that ideal—is seen, state neutrality implies substantive change. While— as Susan Moller Okin avowed—Rawls himself may have remained ambiguous on how to address gender inequality, his theory implies that the state must seek to create substantive, not merely formal, equality, I suggest that those substantive changes will not conflict with liberal neutrality but instead be required by it.

Introduction

A mong feminist philosophers, there has been substantial debate over the implications of Rawls's liberalism for women's equality. Some feminists,

such as Susan Moller Okin, have accepted the fundamental structure of Rawls's liberalism, but have criticized Rawls himself for ignoring gender and remaining ambiguous regarding the status of the family, the structure of

© SAGE Publications (London, Thousand Oaks, CA and New Delhi)

294 JOURNAL OF MORAL PHILOSOPHY 1.3 (2004)

which affects women's life-chances: 'Rawls's theory neglect[s]

Okin writes in her reply to Political Liberalism, Rawls did not clarify in that work whether he endorsed substantive or merely formal equality for women. In her concluding words, she asks, 'what does Rawls mean to say about jus- tice between the sexes?''^ However, Oldn herself argues that Rawls's theory of justice, if applied to the social structures that perpetuate women's inequality,

has great potential for changing those structures; she accepts Rawls's theory (once it is made sensitive to gender) as a suitable theory of feminist justice.^ Other feminists, however, criticize liberalism as an ideology whose promise of equal rights obscures the mechanisms of oppression. Notably, Catharine MacICinnon has argued that liberal freedoms serve male power and obscure the extent of women's subordination.'' For example, freedom of speech has been used to protect pornography, which MacKinnon argues is harmful to women; this freedom, as MacIGnnon sees it, protects the interests of men pre- cisely where those interests are at odds with women's, while it appears to have no gender bias (since freedom of speech is every citizen's right, regardless of

gender.'' As

1. Susan Moiler Olcin, Justice, Gender, and the Family (New York: Basic Books, 1989),

ch. 5, quotation from p. 89. See also Veronique Munoz-Darde, 'John Rawls, Justice in the Family, and Justice ofthe Family', Tlie Philosophical Quarterly 48.192 (1998), pp. 335-52; she writes of Rawls that 'the family is both treated as a distinct and fundamental institution, and never discussed in any detail', p. 337. As these writers have pointed out, in Theory, Rawls assumed that the family as it stands is just. See John Rawls,/! Tlieory ofJustice (Cam- hridge, MA: Harvard University Press, 1971), pp. 467-68, and sections 70 and 71.

2. Susan Moller Okin, 'Political Liberalism, Justice, and Gender', Ethics 105.1. (1994),

pp. 23-43 (43). Rawls replies to Okin in 'The Idea of Public Reason Revisited', in J. Rawls, The Law ofPeoples (Cambridge, MA: Harvard University Press, 1999), pp. 129-80, section 5, and in Justice as Fairness: A Restatement (Cambridge, MA: Harvard University Press, 2001), IV.50. Andrew Smith has argued that these replies fail to address the problems raised by liberal tolerance of religious groups which oppress women; see 'Closer But Still No Cigar:

On the Inadequacy of Rawls's Reply to Okin's "Political Liberalism, Justice, and Gender"', Social Tlieory and Practice 30.1 (2004), pp. 59-71.

3. See Okin, 'Political Liberalism, Justice, and Gender', pp. 42-43. More recently, Okin

has addressed the tensions between liberalism and democracy which arise in the context of

conferring group rights on groups which oppress women. See Susan Moller Okin, with respondents. Is Multiculturalism Badfor Women? (ed. Joshua Cohen, Matthew Howard and Martha C. Nussbaum; Princeton: Princeton University Press, 1999).

4. See Catharine MacKinnon, Feminism Unmodified: Discourses on Life and Law (Cam-

bridge, MA: Harvard University Press, 1987) and Toward a Feminist Theory of the State (Cambridge, MA: Harvard University Press, 1989), esp. pp. 157-70. See also Carole Pateman, The Sexual Contract (Cambridge: Polity Press, 1988). These feminist critiques of liberalism are influenced by Marxism. One can compare MacKinnon's claims to Marxist claims that liberal ideology serves capitalists while obscuring workers' oppression. The views of MacKinnon and Pateman should be distinguished from the feminist critique of liberalism motivated by an ethics of care or relationality; for an example of that view, see Virginia Held, 'Non-Contractual Society: A Feminist View', in Marsha Hanen and Kai Nielsen

(eds.). Science. Morality, and Feminist Tlieory, Canadian Journal of Philosophy Supplementary

Volume 13(1987), pp. 111-37.

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gender),^ In MacKinnon's view, the supposedly objective, neutral state is in fact 'male',* By this she means not only that law-makers and justices apply supposedly gender-neutral laws in sexist ways, but also that those supposedly gender-neutral laws are themselves subtly, but powerfully, discriminatory. The best example of this (historically) is the family: the area which liberalism has protected as private has been precisely the site of women's oppression. Given the unequal balance of power between men and women, protecting the family sphere from judicial scrutiny masked injustices. Again, in MacICinnon's view, it is not coincidental that protected freedoms (such as speech) coincide with the areas in which women's inequality is now, in her view, maintained. One of MacKinnon's central points, drawn from Marxist theory, is that because many choices are products of oppressive conditioning, liberal free- dom of choice will perpetuate oppression, MacKinnon's view is in contrast to Okin's liberal feminism, for while Oldn also recognizes that social conditioning and free individual choices perpetuate

sexual inequality, she argues that while 'Rawls's Theory

injustices of gender, [it] has great potential for doing so,'*^ Martha Nussbaum too has defended the project of liberal feminism against MacKinnon's cri- tique,^ A crucial difficulty with MacIGnnon's view is that her critique of liberalism seems to depend on a denial of freedom, Okin and Nussbaum— like many feminists—are also concerned with how social pressures shape women's choices, but MacKinnon goes much further in suggesting that women's choices cannot be truly free within a patriarchal society,' In this article, I argue that Rawls's liberalism can indeed be an ally for feminism. But in contrast to Oldn and Nussbaum, I focus primarily on the issue of lib- eral neutrality, a topic suggested by MacKinnon's work. While neutrality is often taken to be at odds with feminism—since, for example, it seems femi- nist education in schools would conflict with it—I argue that feminists should welcome neutrality as a moral ideal in the process of justification, and that neutrality itself will require substantive feminist reform. From MacIGnnon's perspective, liberal neutrality is a deceptive fiction, con- cealing the state's patriarchal bias. In contrast, I argue that the liberal aspira- tion to neutrality supports feminist goals, 1 discuss two kinds of neutrality:

neutrality at the level of justifying liberalism itself, and state neutrality in

,does not discuss such

5,

MacKinnon, Towflrr/, pp, 195-214,

6,

MacKinnon, Toivflrrf, pp, 161-62,

7,

Okin, 'Political Liberalism', p, 42,

8,

Martha Nussbaum, Sex and Social Justice (Oxford: Oxford University Press, 2000),

pp, 77-80, Indeed, though MacKinnon critiques liberalism, Nussbaum writes that we may see her as 'a kind of Kantian liberal, inspired by a deep version of personhood and auto- nomy', p, 79. 9, See John D. Walker, 'Liberalism, Consent, and the Problem of Adaptive Prefer- ences', Social TJieory and Practice 21,3 (1995), pp, 457-71, and Elizabeth Brake, 'A Liberal Response to Catharine MacKinnon', Southwest Philosophical Studies 11 (2000), pp. 17-23.

296 JOURNAL OF MORAL PHILOSOPHY 1.3 (2004)

political decision-making.'° Botb kinds are contentious within liberal tbeory. Rawls's argument for justice as fairness bas been criticized for non-neutrality at tbe justificatory level. Rawls bimself, in Political Liberalism, noted this problem in A Theory ofJustice." I will defend a qualified account of neutrality at the justificatory level, arguing that the exclusion of certain creeds from the justificatory process is justified. I then argue that the justification process I describe offers a justificatory stance supportive of tbe feminist rejection of state-sponsored gender hierarchy. Further, I argue that liberal neutrality at tbe level of political decision-making will have surprising implications for gender equality. While—as Okin avows—Rawls himself may have remained ambiguous on bow to address gender inequality, his theory implies that the state must seek to create substantive, not merely formal, equality.

Liberal Neutrality

Liberal neutrality is the doctrine that the state should remain neutral between competing conceptions of the good, where an individual's conception of the good is whatever plan of life she has, subject to certain rational constraints. Such conceptions may include, for example, commitment to religious beliefs, or to feminism, or to tbe traditional gender-structured family.'^ Neutrality bas been taken up widely by liberal theorists. For example, Ronald Dworkin has defined liberalism as tbe view tbat the government must 'treat its citizens as equals' and argued that this requires that 'political decisions must be, so far as is possible, independent of any conception of tbe good life, or of what gives value to life'.'^ Thus, the foundational liberal tenet of moral equality directly implies liberal neutrality. Will Kymlicka writes, '[a] central feature of contemporary liberal tbeory is its emphasis on "neutrality"—the view that the state should not reward or penalize particular conceptions of the good life but, ratber, should provide a neutral framework within which different and conflicting conceptions of the good can be pursued.'''' Tbe doctrine of neutrality is often thought to be problematic, at many levels. First, some liberals bave rejected tbe aspiration to neutrality between conceptions of the good, arguing that a commitment to moral equality need

10. More fine-grained distinctions can be made; see pp. 883-84 in Will Kymlicka,

'Liberal Individualism and Liberal Neutrality', Ethics 99.4 (1989), pp. 883-905, and Joseph Raz, Tlie Morality ofFreedom (Oxford: Oxford University Press, 1986). One might distinguish the two sorts of neutrality I have in mind by thinking of them as positioned before and after the original position. Justificatory neutrality is neutrality in the argument for the theory of justice; political neutrality is the neutrality exercised by the state in accordance with the principles of justice.

11. John Rawls, Political Liberalism (New York: Columbia University Press, 1993).

12. Rawls, Tlieory, pp. 92-93, and Political Liberalism, p. 19.

13. R. Dworkin, 'Liberalism', in Stuart Hampshire (ed.). Public and Private Morality

(Cambridge: Cambridge University Press, 1978), pp. 113-43; quotation from pp. 127-29.

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not imply a commitment to seeing all ways of life as comparable. Equal respect for individuals, on this view, does not require equal respect for what- ever ends and values they possess. '^ An argument associated with this view is that liberal neutrality involves an impoverished view of human life and human possibility and is likely to produce citizens in thrall to such a view. I will not address this criticism further here. Second, neutrality in political decision- making apparently presents serious impediments to such decision-making. For example, H. Tristram Engelhardt has argued that liberal neutrality con- flicts with nationalized healthcare. He points out that such a system must either provide, or not provide, services such as abortion, assisted reproductive technologies and physician-assisted suicide. Either way, he argues, it will privi- lege some comprehensive doctrines over others: for instance, a system pro- viding abortion will privilege doctrines that see it as a legitimate medical procedure over those which see it as morally impermissible.' ^ I will return to this issue in the final section of this article. A third problem is that liberal neutrality seems to require that the justification for liberalism also be neu- tral, that is, that instead of basing liberalism on a controversial conception of human nature or of the good (as Mill arguably did), its defender must rest his or her case on principles that can be accepted by all reasonable persons.' ^ This issue is the subject of an important change which Rawls made in Political Liberalism to the view he defended in Theory ofJustice.

The background to this change is that in Theory, Rawls had defined a

political system as stable when it motivates its citizens to act according to its principles of justice: '[o]ne conception of justice is more stable than another if the sense of justice that it tends to generate is stronger and more likely to override disruptive inclinations and if the institutions it allows foster weaker impulses and temptations to act unjustly.''^ To demonstrate the stability of justice as fairness, Rawls tried to show that citizens would be motivated to act justly within a system regulated by the principles of justice. To this end,

he argued that the 'disposition to take up

.the standpoint of justice accords

with the individual's good', giving as a reason for this 'the Kantian interpre- tation [of the theory of justice]: acting justly is something we want to do as free and equal rational beings'.'' But this argument employs a premise about

15. John Skorupski, 'Liberal Elitism', in John Skorupski, Ethical Explorations (Oxford:

Oxford University Press, 1999), pp. 193-212.

16. Tristram Engelhardt, 'Freedom and Moral Diversity: The Moral Failures of Health

Care in the Welfare State', Social Philosophy and Policy 14.2 (1997), pp. 180-96.

17. See, for example, Colin Bird, 'Mutual Respect and Neutral Justification', Ethics

107.1 (1996), pp. 62-96: 'it is not enough that the liberal state embrace an ethic of neu- trality. The justification for this liberal stance must itself display a certain kind of neutrality or impartiality by avoiding arguments which rely on 'controversial' claims about the nature of the good life', p. 62.

18. Rawls, Theory, p. 454. See also Rawls, Political Liberalism, p. 142.

19. Rawls, Theory, pp. 567, 572. One way to understand the principles of justice is as

the object of choice of a free rational will. Rawls calls his method 'Kantian constructivism':

298 JOURNAL OF MORAL PHILOSOPHY l .3 (2004)

the nature of human good. It gives a ICantian conception of the good as a comprehensive doctrine, one in which acting justly accords with an agent's good. Rawls defines a 'comprehensive doctrine' as a theory of value which

applies to a wide range of subjects, such as 'what is of value in human life,

of personal character, as well as ideals of friendship and of familial

and associational relationships'.^" Liberal neutrality, however, requires neu- trality between comprehensive doctrines. Thus, since assuming a Kantian comprehensive doctrine conflicts with neutrality between comprehensive doctrines, Rawls rejects this move in Political Liberalism.'^^

Not only did the account of stability illicitly employ a Kantian conception

ideals

of the good as a comprehensive doctrine, but moreover, Rawls writes in Political Liberalism, Theory treated justice as fairness itself as a comprehensive doctrine. Rawls had there presented a conception of a 'well-ordered society' in which 'everyone accepts and knows that the others accept the same principles of justice, and the basic social institutions satisfy and are known to satisfy these principles'.^^ However, the idea of a society in which 'every-

one accepts

as fairness is understood as a comprehensive doctrine.^^ Rawls attempts to correct these problems in Political Liberalism by adjusting the scope of justice as fairness; it is not comprehensive, but narrowly political.^^ As such, it is the possible subject of an overlapping consensus between various reasonable comprehensive doctrines—'religious, philosophical and moral'—^which can agree to the regulatory principles of justice.^^ Justice as fairness, as political, applies only to the basic structures of society and can slot into the various comprehensive doctrines found therein.^^

In making these changes, Rawls was in part motivated by the circum- stances of contemporary American society, especially the deep divisions over

religion. In an interview, he explained the focus on religion in Political Libera- lism as motivated by his concern 'about the survival, historically, of constitu-

tional democracy

secular doctrines as compatible with and supportive ofthe basic institutions of a constitutional regime'.^^ Nevertheless, it is not clear either that the

.the same principles of justice' conflicts with neutrality if justice

.the problem is how do you see religion and comprehensive

his principles, like Kant's moral law, are constructed through reason rather than intuited

{Political Liberalism, pp. 99-107).

20. Rawls, Political Liberalism, p. 13.

21. Rawls, Political Liberalism, pp. xvi-xvii.

22. Rawls, Theory, pp. 453-54. Rawls dismissed this conception of a well-ordered society

as 'unrealistic' in Political Liberalism, p. xvi.

23. Rawls, Theory, p. 454, and see Political Liberalism, p. xvi.

24. See Rawls, Political Liberalism, pp. xvi-xvii. He also revises the account of stability.

25. Kawh, Political Liberalism, p. 15.

26. Rawls, Political Liberalism, p. 1 1.

27. Interview with Bernard Prusak, 'Politics, Religion and the Public Good: An Inter-

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Rawls and Feminism

29 9

changes made in the later work will increase the appeal of his theory for those already holding incompatible comprehensive doctrines or that Rawls has made a plausihle case for the stability of justice in a society deeply divided over questions of value.^^ Some have suggested that the original account makes a more convincing case for the stability ofthe principles.^' Moreover, Political Liberalism's restriction of the scope of justice continues to fail to be neutral between all comprehensive doctrines. First, the argument for justice as fairness depends on a claim of moral equality. Rawls claims that human beings are morally equal in virtue of

possessing the potential 'for a conception ofthe

justice'.^° But tiie features of individuals which Rawls piclcs out as constitu- tive of moral equality are themselves not neutral, because they reflect a

conception of what is important about human beings.^' Justice as fairness is not neutral in one respect in which it claims to be neutral because it privi- leges one conception of the good, that is, one in which the individual's plan of life is an object of rational choice. Someone who believes that autonomy is not especially important, or that humans are not equal in more important respects, might resist this claim. Thus, Rawls's derivation ofthe principles of justice appears illegitimately to ignore competing conceptions of the good.^^ The response that neutrality is not foundational but derived from the ideal of moral equality appears to beg the question. Distinguishing between political and comprehensive doctrines, as Rawls does in Politieal Liberalism, does not meet this objection, because such a dis- tinction is /t5e/f controversial. For by assuming that the political conception of the individual and its associated model of moral equality are the basis for defining political principles, Rawls has ignored comprehensive conceptions which would model political principles on alternative conceptions of the indi-

good

[and] for a sense of

28. See Michael Huemer, 'Rawls's Problem of Stability', Social Theory and Practice 22.3

(1996), pp. 375-96. For further discussion, see also Samuel Scheffler, 'The Appeal of Political Liberalism', Ethics 105.1 (1994), pp. 4-22.

29. See for example, Okin's 'Political Liberalism, Justice, and Gender'. Also, Susan

Mendus has argued that Rawls's argument for the congruence of justice with the agent's good need not invoke a comprehensive conception ofthe good, and so the account in Theory need not be inconsistent—see 'The Importance of Love in Rawls's Theory of Justice', British Journal of Political Science 29.1 (1999), pp. 57-75.

30. Rawls, 77!etfr);, p. 561.

31. To review some of the difficulties associated with establishing an account of moral

equality, see Bernard Williams, 'The Idea of Equality', in B. Williams, Problems ofthe Self (Cambridge: Cambridge University Press, 1973), pp. 230-49.

32. A related criticism, made by Adina Schwartz in 'Moral Neutrality and Primary

Goods', Ethics 83.4 (1973), pp. 294-307, and by Thomas Nagel in 'Rawls on Justice', Philosophical Review 82.2 (1973), pp. 220-34, is that Rawls's individualism and his argument that contractors in the original position will seek to maximize their primary goods is incompatible with socialist views of the good, or indeed, with those of members of religious orders who take vows of poverty. See also Kymlicka, 'Liberal Individualism', pp. 886-93.

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vidual and his or her morally significant features.^^ For instance, a compre- hensive doctrine might simply deny that the political sphere is separable:

examples of religions that would base law on religious teachings spring readily to mind. Thus the religious believer who seeks unity of church and state, or a legal system based on the Old Testament, might respond to Rawls that his restriction of the scope of justice does not make the theory either neutral or acceptable to the believer.^'' Or, a doctrine might allow such a dis- tinction, but carve it differently: some feminist analyses of oppression are an example (consider the claim that 'the personal is political'). Thus, MacIGnnon might say in response to Political Liberalism that the distinction between com- prehensive doctrines and the political implicitly excludes feminist considera- tions (which take issue with the content of various comprehensive doctrines and their effects in society) from justice as fairness.^^ In the next section, I turn to the question of the extent to which such a response is justified.

Feminism, Justificatory Neutrality and William Clifford

In the next section I will argue that neutrality at the level of political decision- maldng can serve feminist goals. Here I will argue that the restriction of jus- tice as fairness to the political is less fruitful; moreover, neutrality at the level of theory justification must be qualified as 'skeptical' or 'agnostic', not plural- ist. Such a procedure derives the ideal of moral equality and the policy of political neutrality (in decision-making by the liberal state) from the absence of any justification for unequal treatment. The procedure I will sketch is morally neutral—since it presupposes no claims about the good—but uses an epistemic argument to exclude doctrines that deny equality. It retains neu- trality at the justificatory level only in a qualified manner. While some illiberal comprehensive doctrines must be tolerated, and their expression protected, in a liberal state, they can be ignored in the derivation of the principles gov-

erning such a state. My account is closer to Theory, which I see as more com- patible with a feminist perspective in this respect, than to Political Liberalism.'^^ From a feminist perspective, it may be a mistake not to see justice as a comprehensive doctrine. Recall that a comprehensive doctrine applies to

'what is of value in human life,

ideals of friendship and of familial and associational relationships'.^''

ideals

of personal character, as well as

33. Paul F. Campos raises such a criticism in 'Secular Fundamentalism', Columbia Law

Review 94.6 (1994), pp. 1814-27.

34. Of course, Rawls means only for justice as fairness to be compatible with all

reasonable comprehensive doctrines {Political Liberalism, p. 210), and he would surely view a doctrine which denied the separation of church and state as unreasonable. It should be obvious why this response will not placate the believer in question.

35. This is also Okin's concern; but the concern deepens in proportion to the range of

social practices which one sees as constitutive of, and reinforcing, inequality.

36. Compare Okin's 'Political Liberalism, lustice, and Gender' on this point.

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301

According to most feminist views, justice should regulate these spheres— especially that of the family,^^ Justice is not only a virtue of political insti- tutions but is a virtue within the apparently private spheres of family and civil society,^' Some qualifications are important. The scope of justice should be distinguished from the question of the legitimate extent of state interfer- ence in individual lives. The state might promote, but not enforce, the ideal of justice in all spheres of life. Also, justice is not the only virtue. Principles of justice can be supplemented with other comprehensive doctrines. Third, the content of principles of justice may be different at micro and macro levels (for example, the difference principle might not be the relevant principle of distribution within the family). But the underlying theory of justice, deriving from the ideal of moral equality and equal respect, should be consistent from the macro to the micro level. From the liberal feminist viewpoint, in which justice should apply to the family, the restriction of justice to the political makes the theory less attrac- tive. From the Marxist feminist viewpoint, restricting justice to the political begs the question of how the political ought to be defined (for example, if the political is defined as any relationship characterized by a dynamic of power, Rawls's distinction is incorrect). And within liberal theory, the restric- tion to the political does not seem to offer a significant advantage. As I have indicated above, it does not speak to those whose alienation from the theory Rawls sought to overcome, such as religious fundamentalists,''^ However, allowing justice to be comprehensive conflicts with neutrality at the level of political decision-making, so I will defer this question. To return to the issue of justification, I think a defender of Rawls can give good epistemic reasons for rejecting certain creeds from consideration in the justification procedure, creeds which, for instance, would define humans as unequal or maintain that the church ought to be the highest arbiter in political affairs, Rawls restricts himself to being neutral among reasonable views, but he allows religious views to be counted as reasonable.'" I will suggest that a stronger account of rational constraints on belief shows why it

38, See Jean Hampton, 'Feminist Contractarianism', in Louise Antony and Charlotte

Witt (eds.), A Mind of One's

39, I use 'civil society' in Hegel's sense. On this point, see O\an, Justice, Gender, and the Family, and John Tomasi, 'Individual Rights and Community Virtues', Ethics 101,3(1991), pp, 521-36, 40, Making justice comprehensive suggests a much stronger liberalism. For example, it allows that the liberal view of justice will come into conflict with comprehensive views about the good, which include belief in gender hierarchy. This will produce social instability; if liberalism is to be stable, it must inculcate the principles of justice and associated ideals in education. This is the conflict Okin discusses in Multiculturalism. In response to the idea that restricting justice to the political will promote stability, I say that justice, whether political or comprehensive, will be unstable unless ideals of moral equality are taught, 41, Rawls distinguishes the rational and the reasonable. Rational applies to means-end reasoning, and reasonable to a willingness to enter discussions.

Own (Oxford: Westview Press, 1993), pp, 227-56,

302 JOURNAL OF MORAL PHILOSOPHY l ,3 (2004)

is legitimate for certain conceptions ofthe good to be disregarded at the level of political justification. Of course, this may not appeal to the believer, but as I have pointed out, Rawls's more conciliatory approach is unlikely to either. This approach will illuminate the appeal of Rawls's liberalism to femi- nism, for it begins with an ideal of moral equality incompatible with views of gender hierarchy. Indeed, most sexist and racist views (and other forms of illegitimate discrimination) are excluded from the justificatory process on the view I will describe,'*^ In an 1877 paper, William Clifford argued that it was ethically wrong to hold religious beliefs, or at least, to hold any beliefs 'without sufficient evi- dence',''3 Clifford argued that there is a normative requirement to evaluate our beliefs: 'it is wrong always, everywhere, and for any one, to believe any- thing upon insufficient evidence',^'' Clifford gives an example of a ship-owner who sends his ship to sea sincerely believing in its sea-worthiness although he lacks sufficient evidence for this belief. The ship-owner is guilty of the deaths of the passengers when the ship sinks. Even had it not sunk, Clifford adds, he would still have been guilty, for he had no right to believe as he did, Clifford aims to establish a duty to doubt on several grounds, both con- sequentialist and deontological, Clifford's consequentialist arguments are interestingly resonant with dis- cussions of feminism, liberalism and stability. Where feminists warn that belief in gender hierarchy has subtle effects on women's actual status, Clifford somewhat confusingly paraphrases Jesus: '[h]e who truly believes that which prompts him to an action has looked upon the action to lust after it, he has committed it already in his heart, "'^ Believing without warrant leads the incautious believer down the wide plain road of epistemological vice. Since belief is not 'a private matter' but helps create society, vicious habits of belief

42,

Of course, on Rawls's description, they should be excluded in the original position

because the contractors do not know their own race or sex. But my comments here respond to the objector who asks why Rawls is entitled to set up the original position in a race- or gender-blind way,

43, Clifford's view has been challenged, William James responded to it in 'The Will to Believe' (1896), reprinted in John J, McDermott (ed,). The Writings of William James (Chicago: University of Chicago Press, 1978), pp, 717-35, Susan Haack has more recently argued that it is too demanding in her 'The Ethics of Belief Reconsidered', in Lewis Hahn (ed.). The Philosophy of Roderick M. Chisholm (Chicago: Open Court, 1997), pp, 129-44, A major problem with Clifford's view is the difficulty of specifying what evidence counts as sufficient. I will bracket these serious worries for two reasons. First, I am concerned with ruling out certain value judgments and religious beliefs from the justificatory process, not establishing that belief in them is ethically wrong. Second, I am more interested in com- paring Clifford's arguments with Rawls's than with defending Clifford's conclusions, 44, William IOngdon Clifford, 'The Ethics of Belief, in his Lectures and Essays (ed, Leslie Stephen and Frederick Pollock; London: Macmillan, 2nd edn, 1886), pp. 339-63 (346), originally published in Contemporary Review (1877),

45,

Clifford, 'Belief, p. 342,

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30 3

infect posterity,""^ The person who believes without warrant makes herself

credulous, and thereby does a 'great wrong towards Man', for (like Mill in On Liberty), Clifford claims that if society becomes a den ofthe easily convinced,

it is poised to 'sink back into savagery','*'^ Tbese arguments take the critical

examination of beliefs as instrumentally valuable, Clifford also suggests that 'the faculty of belief is valuable for its own sake

and that failing to reflect critically on our beliefs fails to respect it: '[bjelief, that sacred faculty which prompts the decisions of our will, and knits into harmonious working all the compacted energies of our being, is ours not for ourselves, but for bumanity,"*^ He castigates credulity, like lying, as a failure

to revere the truth:

Habitual want of care about what 1 believe leads to habitual want of care in others about the truth of what is told to me,,. It may matter little to me, in my cloud-castle of sweet illusions and darling lies; but it matters much to Man that I have made my neighbors ready to deceive. The credulous man is father to the liar and the cheat,''

A credulous citizenry is, indeed, perhaps as great a threat to the stability of

a liberal state as a quarrelsome but critical one. However, I am not equipped to evaluate these causal claims, I want to investigate the following ideas, suggested by Clifford, as relevant to Rawls's justification procedure: credu- lity, belief on insufficient evidence, is irrational (a bad strategy), and beliefs formed without sufficient evidence are unreasonable and lacking in respect for humanity.

First, credulity is a bad strategy, both for the individual and the group, in policy debate. When discussion is undertaken for some purpose—such as choosing principles of justice—a rule of honesty is rationally justified since the knowledge that one's interlocutors may be lying wall make progress much more difficult. But credulity will also undermine debate by making truth- telling unnecessary, (A rule against credulity might also be thought of as part of a Habermasian discourse ethic.) Someone might respond that lying is a sophisticated and time-saving form of communication; honesty is not always the best policy. But even if lying migbt be rational, believing too easily would never seem to be a good strategy in debate. In some cases, believing some- thing we ought not to believe (on purely epistemic grounds) could be the best strategy (for example, when the belief will motivate us to action). But while credulity might be rational wben one cbooses it to motivate oneself, the dan- gers of indiscriminate credulity in debates of consequence clearly outweigh the possibilities of benefit. In most human interactions, doubt is rational. Though there may be isolated exceptions, doubt as a habit is rational, for

46. Clifford, 'Belief, p, 342,

47. Clifford, 'Belief, p. 345; )ohn Stuart Mill, On Liberty (London: Penguin Books,

1985 [1859]).

48,

Clifford, 'Belief, p. 343.

49,

Clifford, 'Belief, pp, 345-46.

304 JOURNAL OF MORAL PHILOSOPHY 1.3 (2004)

credulity lets reason linger, in paraphrase Clifford, in cloud-castles of illusion, where its keenness may atrophy in the delights of darling lies.^° One n\ight, therefore, justify the exclusion of the heliefs of the credulous from the original position by introducing a rule of doubt. At the more fundamental level of justification, Clifford's suggestion that credulity is an epistemological vice explains why beliefs without sufficient evidence are not reasonable, that is, why they fail to respect the process of the giving of reasons. Credulity eases the distinction between the true and the false.^' Clifford suggests that the truth demands reverence: belief is no light matter. To believe the truth of some claim is to make a judgment about the nature ofthe world. Further, belief invests the believer in its object. Our ability to believe, or not to believe, is basic to our rational maneuverings. The metaphysical magician, who waves the wand of his conviction without dis- crimination, granting this hypothesis truth and that not, mocks reason itself. Believing without sufficient evidence undermines the distinction between truth and falsity because it fails to be precise about that distinction; if I take to be true what could just as easily, to my knowledge, be false, I have failed to acknowledge the proper boundary between the two and the gravity of my judgment, both as it reflects on the world and as it implicates me. If this is right, credulity abuses humanity just as lying does in I<ant's view, by failing to show respect for rational nature in oneself and others.^^ Unwarranted belief fails to respect reason as an end in itself by using it as a toy to indulge prejudice, inclination and fancy. Rawls argues that political justification must be reasonable, in the sense that such justification gives reasons which one could expect another to accept (whether or not they do in practice). According to Rawls's idea of political legitimacy, the 'exercise of political power is fully proper only when it is exer- cised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in the light of principles and ideals acceptable to their common human reason'.^^ Rawls invokes this principle in justifying the idea of a public reason, that is, that considerations introduced into deliberations be limited to principles that citizens can rea- sonably be expected to endorse. Of course, reasonable people can disagree due to burdens of judgment. But Rawls would count more beliefs as reasonable

50. Clifford, 'Belief, p. 346.

51. As a character in David Lean's 1962 film 'Lawrence of Arabia' suggestively says, 'A

man who tells lies, like me, merely hides the truth. But a man who tells half lies has forgotten where he put it'.

52. Kant's views on lying extend beyond the famous false promising example in the

Groundwork; in the 'Doctrine of Virtue' Book 1 Chapter 1, he writes that '[b]y a lie a human being throws away and, as it were, annihilates his dignity as a human being'. Part of the argument he gives for this is that lying contradicts the purpose of the faculty of com-

munication. Immanuel ICant, Practical Philosophy (ed. and trans. Mary Gregor; Cambridge:

Cambridge University Press, 1996), pp. 552-53.

53. Rawh, Political Liberalism, p. 137.

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than would my proposed Cliffordian constraints. My suggestion extends the category of the unreasonable to include beliefs without sufficient evidence, which I take to include most forms of revealed religion, atheism, and beliefs about the essential natures of particular races, men, or women. For what Clifford's arguments purport to do is raise the bar for the reasonable—for what we can, or should, take as a reason.^'^ Rawls's view that political justification must be reasonable involves norma- tive assumptions about respect for individuals and the justification for the exercise of power over them. Giving reasons—or at least acting in a way for which one could give reasons which others could reasonably be expected to accept—is required (in Kantian terms) to treat others as ends in themselves,

or 'as beings who must

.be able to contain in themselves [or share] the end

of the very same action'.^^ Rawls's political constructivism locates political legitimacy precisely in the possibility of agreement, or sharing of ends. As I have noted above, such a conception of political justification is not neutral between comprehensive doctrines, since some wall reject reason as the appro- priate form of political justification. My suggestion has been that, given this account of political justification, liberalism may exclude all unwarranted beliefs from its justificatory process. This is not to argue, however, that a lib- eral society should not be tolerant of different conceptions of the good, for such tolerance is fundamental to liberalism. Political neutrality issues from the veil of ignorance.

Thus, the justification for liberalism need be even less neutral, with regard to competing doctrines, than Rawls suggests. An 'agnostic' neutrality can exclude more competing doctrines from consideration. Further, the motivating ideal of liberalism can be generated on Cliffordian grounds, for the Rawlsian ideal of moral equality can be defended epistemically by ruling out unreason- able doctrines. Claims of essential inequality cannot be defended because individual exceptions can always be found, and it is difficult to see what evidence could be produced to justify claims about, for instance, women's nature. Predictions about the abilities of classes of people cannot be made with accuracy, so no legitimate reason for unequal distribution of rights between men and women can be given. Further, as John Stuart Mill argued in The Subjection of Women, we cannot make inferences about women's 'nature' from the characteristics women exhibit in an unequal society in which women and men are subject to different expectations and upbringings. Under cur- rent conditions, we can have no grounds for making general claims about women's innate propensities and abilities.^* Someone might suggest instead

54. Rawls in fact claims the theory of justice is reasonable, not true, so Clifford's

comments would have to be adjusted, mutatis mutandis, to emphasize the evaluation of

reasons as opposed to the evaluation of true belief.

55. From Kant's Groundwork of the Metaphysics of Morals, also to be found in Gregor's

Practical Philosophy, p. 80 (4:430).

56. John Stuart Mill, The Subjection of Women (ed. Susan Moller Okin; Indianapolis:

Hackett, 1988 [1869]).

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that the distribution of rights or primary goods be proportionate to abilities. But how could the relevance of abilities be proven? The thought is that an unequal distribution of rights must be justified, and no sufficient evidence can be given for privileging certain groups or abilities. In the absence of such evidence, the default must be equality. Rawls's defense of reasonableness in political justification (and my ex- tended version of it) cohere with feminist values by excluding sexist beliefs and hierarchical political systems. The exclusion of such beliefs avoids gender bias in the theory; Rawls's liberalism is radically, foundationally, egalitarian. MacKinnon's critique of liberal neutrality as essentially male may have pur- chase instead as a critique ofthe misguided application of liberal principles. For example, as suggested before, the historical exclusion of marriage from justice refiected a gender bias in the construction, and the application, of the law. This construction failed to appreciate that serious injustices which called for legal recourse existed in the supposedly private realm, and, further, that the privacy of marriage (if privacy is understood as absence of interference by the state) was illusory since the borders of that privacy, and aspects ofthe interaction within it, were regulated by law.

Fenrinism and Political Neutrality

Liberal feminism has drawn on the principle of equal opportunity to argue that liberalism is committed to state action to reverse gender inequality. When this principle is applied to gender inequality and the gendered struc- tures of society, it requires the state to address these conditions through law and redistributive measures such as state-supported child-care, equitable laws of property division during marriage and on divorce, fiexibie working hours, parental leave for both parents, and gender-free schooling.^^ As a basic struc- ture of society—by Rawls's admission—the family is subject to the principles of justice.^^ Prima facie, some feminist reforms, such as education in moral equality, seem incompatible with state neutrality. For example, many feminists hold that justice between the genders cannot be achieved so long as childcare remains primarily women's responsibility. Shared parenting, flexible work hours and state-supported creches may support this goal and be compatible

57. Okin, Justice, Gender, and the Family, pp. 175-79. Okin also bases her arguments on

the family's influence on moral development, in response to Rawls's account of moral psychology in Part III of Theory. She argues that citizens will not develop a sense of justice so long as fathers and mothers possess unequal shares of power. Like Mill, she notes that habitual inequality in personal life ill equips us to treat others, in any circumstances, as free and equal. Also see Karen Green, 'Rawls, Women, and the Priority of Liberty', in Janna L.

Thompson (ed.). Women and Philosophy, Australasian Journal of Philosophy, Supplementary

Volume 64 (1986), pp. 26-36. Green uses the liberty principle, as well as the principle of equal opportunity, in an argument for liberal feminism; however, invoking the liberty prin- ciple in this context seems to me problematic.

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with neutrality. But education that encourages boys and girls equally to envision themselves as care-givers—or billboard advertisements encouraging men to change diapers—might conflict with neutrality by teaching children a controversial conception of the good. However, again deferring this conflict between neutrality and feminism, I want to focus on different implications that neutrality will have for feminist goals. MacKinnon's complaints about liberal neutrality focus on how the abstrac- tion of liberal theory ignores the concrete context and effects of its applica- tion. Thus, a right to free speech in a (hypothetical) context where the media is controlled by sexist men will secure the protection of sexist speech, with ensuing bad consequences for women. However, if we accept MacKinnon's view that standing practices often have a deeply patriarchal element, then neutrality in practice will require radical change. First, certain apparently pri- vate social structures arguably impede women's equality. But, second, these structures are not purely private—for instance, it is mistaken to conceptualize civil society as a distinct sphere from the state and as free from state inter- ference. Thus, state neutrality will require substantive change in state policies regulating these apparently private spheres, when standing regulation is pre- mised on or promotes a certain conception of the good. Raz and Kymlicka have distinguished neutrality in deliberation—the state's avoidance of invok- ing conceptions of the good in policy-making—and in consequences—the state's avoidance of promoting, as a result of its actions, a conception of the good.^^ I will adduce both lands in the following discussion. Take the example of having children and a career. Women are formally free to choose a career, but, to a much greater extent than men, face a con- flict between pursuing a career and having children. External obstacles to pursuing both include the expense of good childcare and the lack of flexi- bility in working hours imposed by many careers. The structures for pursuit of social primary goods are fitted for someone without the responsibilities of parenting. Because women typically take on greater childcare responsibilities than do men, these structures unduly penalize women and tend to reinforce the gendered division of labor by forcing parenting women out of the work- place. Green argues that such situations call for state redress on the basis of equal opportunity, since changes are needed to ensure that all individuals can pursue their conceptions of the good.^° But it is also the case that such structures are not neutral. The arrangement of working hours, for example, was historically formed on the basis of a gendered division of labor. Further, their effects unduly promote one conception of the good—that in which primary care-givers for young children stay home, while their partners work outside the home to support the family.

59. See Kymlicka, 'Liberal Individualism', pp. 883-84. Raz argues that Rawls endorsed

neutrality in consequences, and Kymlicka that Rawls endorsed justificatory neutrality. Since

both are implicated in the same way in my argument, I will consider both.

60. Green, 'Rawls', p. 35.

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It is crucial to my argument to note that the state directly maintains the working environment predicated on this conception in a host of ways. The state sets minimum wage and overtime laws, places constraints on worlcing hours, and regulates employee rights through labor law; indirectly, it supports companies through government contracts; and as an employer, it enforces its

own policies for those employed by the state. It also has more indirect effects through provision of services such as public transport (which affects access to employment). Once we consider the state's involvement in all of these areas,

it becomes clear that the state has substantial effects on working conditions.

Neutrality between conceptions ofthe good in this area will require creating policy on grounds that respect the variety of lifestyles persons might choose, and seeking to ensure that the consequences of policy do not indirectly promote one conception of the good.

Another example is marriage. As Okin argues, although the family has

been seen as private, it is a major determinant in the distribution of social goods, and thus family arrangements must meet the demands of justice. It is

a life-shaping institution, the 'gender structure [of which] is itself a major

obstacle to equality of opportunity', affecting the 'opportunities of girls and women'.^' Again, reform of the family seems required on grounds of equal opportunity. But neutrality too requires substantial change to marriage and family law. Simply by recognizing marriage, the state fails to be neutral—and even if marriage were extended to same-sex partnerships, this would be the case. For by recognizing marriage, the state picks out a certain type of rela- tionship—monogamous, permanent, between two persons—as worthy of recognition. Again, both in deliberation and effects, the state privileges this type of relationship—corresponding to a certain conception of the good— over other arrangements.^^ When we consider how many of the basic struc- tures of society are shaped by state regulation, and recognize—through femi- nist or other critique—how those structures assume and promote controversial conceptions of the good, it seems that neutrality will require substantial change. Ronald Dworkin has argued that a liberal state is required by neutrality to act to secure a conception of the good under threat. Taking the example of environmental conservation, he argues that a liberal state is not permitted to support conservation on the grounds that it is part of 'a superior conception of what a truly worthwhile life is'. But it may be permitted and even required to do so on the basis that non-intervention 'is not neutral amongst competing ideas of the good life, but in fact destructive of the very possibility of some

61. Okin, Justice, Gender, and the Family, p. 16.

62. Feminists and Marxists have argued that monogamous marriage indirectly promotes

other conceptions of the good (such as the value of property ownership). See Christine Overall, 'Monogamy, Non-Monogamy, and Identity', Hypatia: A Journal ofFeminist Philosophy 13.4 (1998), pp. 1-17 and John McMurtry, 'Monogamy: A Critique', The Monist 56 (1971), pp. 587-99.

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of these'.^^ If wildlife and nature are destroyed, the conception of the good which involves them will no longer be open to pursuit. Similarly, gender-structured social practices destroy the possibilities that would be available to women if they were fully equal members of society. The gendered division of labor within the family, the devaluing of women's work,

with small children close off alternatives

that should be left open. Different courses of action are made unavailable by the social conditions themselves. Just as environmental destruction destroys the possibility of outdoor pursuits, the hegemony of gender-structured social practices destroys the possibility for women to live as they could in a society in which women were not systematically disadvantaged. The force of this point is not that women's lives could be better. The point is that the world that is made impossible by social practices is one in which women could live without the impediments to success and the strains on their psychology, their social relations, and their attitudes to and expectations of work, love and parenting, which currently exist as a consequence of oppression. The closure of this possibility is unjust, and not just because it violates equal opportunity, but because it violates neutrality. Even when individual women are able to overcome barriers, they do not have access to conceptions of the good that would be available to them in a society where women were fully equal. Also eliminated are the unknown possibilities ofthe good, for women, of living as fully equal members of society.

and employment tha t penalizes those

In this article, I have tried to show that feminism has more to gain from state neutrality than has been widely recognized. Justificatory neutrality as agnostic, like the foundational ideal of moral equality, implies a rejection of sexist and other oppressive doctrines. In practice, state neutrality implies substantial change, once the state's involvement in the apparently private sphere is recognized, and the disproportionate influence of a sexist concep- tion of the good on those structures—and concomitant promotion of that ideal—is seen. Liberal neutrality need not be inconsistent with feminist goals; indeed, it may support them. In fact, if neutrality does require these far-reaching changes, the other conflicts between feminism and neutrality, or neutrality and justice as a comprehensive doctrine, may become less pressing. Attitudinal change or feminist education may be less important when pri- mary care-givers are no longer penalized in their pursuit of a career, the law of marriage and divorce is reformed, and other substantial economic and legal changes are effected.

63. Dworkin, 'Liberalism', p. 141.