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The Limits of Constructivism: Can Rawls Condemn Female Genital Mutilation?

Published online by Cambridge University Press:  28 August 2009

Andrew Koppelman
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Abstract

Constructivist political theory, championed most prominently by John Rawls, builds up a conception of justice from the minimal requirements of political life. It has two powerful attractions. It promises a kind of civic unity in the face of irresolvable differences about the good life. It also offers a foundation for human rights that is secure in the face of those same differences. The very parsimony that is its strength, however, deprives it of the resources to condemn some atrocities. Because it focuses on the political aspect of persons, it has difficulty cognizing violence done to those aspects of the person that are not political, preeminently the body. Constructivism thus can be only a part of an acceptable theory of justice.

Type
Research Article
Information
The Review of Politics , Volume 71 , Issue 3 , Summer 2009 , pp. 459 - 482
Copyright
Copyright © University of Notre Dame 2009

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References

1 Freeman, Samuel, Justice and the Social Contract: Essays in Rawlsian Political Philosophy (Oxford: Oxford University Press, 2007), 4Google Scholar.

2 Rawls, John, “A Kantian Conception of Equality,” in Collected Papers, ed. Freeman, Samuel (Cambridge, MA: Harvard University Press, 1999), 255Google Scholar.

3 See Rawls, John, Political Liberalism, expanded edition (New York: Columbia University Press, 1996), 144–50Google Scholar.

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5 Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971; revised edition, 1999)Google Scholar, 19/17 rev.

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11 Ibid.

12 Ibid., 335.

13 Freeman, Rawls, 70.

14 Ibid., 278, 286, 343, 396.

15 Rawls, John, Justice as Fairness: A Restatement (Cambridge, MA: Harvard University Press, 2001)Google Scholar (hereafter Restatement), 152.

16 Ibid.

17 Ibid., 152 n. 26; see also Political Liberalism, 214–15.

18 Freeman, Rawls, 80.

19 Ibid; see also 396–97; Scanlon, T. M., “Rawls on Justification,” in The Cambridge Companion to Rawls, ed. Freeman, Samuel (Cambridge: Cambridge University Press, 2003), 162–63Google Scholar.

20 See A Theory of Justice, 62/54 rev.

21 Thomas Nagel, “Rawls on Justice,” in Daniels, Reading Rawls, 9–10.

22 Political Liberalism, 74.

23 Ibid., 76.

24 Rawls, John, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999), 79Google Scholar. In my opening paragraphs, I am using “human rights” more broadly than Rawls does here.

25 Ibid., 68.

26 Freeman, Rawls, 436.

27 Rawls, The Law of Peoples, 78–81, 92–93 n. 6.

28 A Theory of Justice, 331/291 rev.

29 Political Liberalism, 335.

30 Freeman, Rawls, 48, 78–79.

31 Ibid., 75–76.

32 Pogge, Thomas, John Rawls: His Life and Theory of Justice (Oxford: Oxford University Press, 2007), 88CrossRefGoogle Scholar.

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34 Ibid., 87.

35 See Feinberg, Joel, The Moral Limits of the Criminal Law, vol. 4, Harmless Wrongdoing (Oxford: Oxford University Press, 1988), 39–80Google Scholar.

36 Political Liberalism, 292.

37 Ibid., 308.

38 “The Idea of Public Reason Revisited,” in Collected Papers, 587.

39 Ibid.

40 See A Theory of Justice, 331 n. 54 / 291 n. 53 rev.

41 “The Idea of Public Reason Revisited,” 588.

42 His weakness in this regard is also noted by Ball, Carlos, The Morality of Gay Rights (New York: Routledge, 2003), 22–30Google Scholar.

43 I use this example with acknowledgement of the danger, emphasized by Yael Tamir and acknowledged by her critics, that Westerners will regard this unfamiliar practice with “smug, unjustified self-satisfaction,” ignoring the abuses of women's bodies—the powerful cultural pressures that lead to breast implants, tummy tucks, botox injections, and anorexia—that are commonplace in our culture. Yael Tamir, “Hands Off Clitoridectomy,” Boston Review, Summer 1996; see also responses in Boston Review, Oct./Nov. 1996; Clare Chambers, “Are Breast Implants Better than Female Genital Mutilation? Autonomy, Gender Equality and Nussbaum's Political Liberalism,” Critical Review of International Society and Political Philosophy 7 (Autumn 2004): 1–33.

44 FGM is frequently performed in unsanitary conditions and may result in severe, occasionally life-threatening medical complications. As Western technology spreads, the procedure is increasingly performed by medically trained personnel with anesthesia, sterile tools, and antibiotics. See Gruenbaum, Ellen, The Female Circumcision Controversy: An Anthropological Perspective (Philadelphia: University of Pennsylvania Press, 2001), 54–59, 144–49CrossRefGoogle Scholar. Medical professionals perform nearly half the operations in Somalia. Obermeyer, Carla Makhlouf, “Female Genital Surgeries: The Known, the Unknown, and the Unknowable,” Medical Anthropology Quarterly 13, no. 1(1999): 100CrossRefGoogle ScholarPubMed n. 21. Some practices, such as infibulations, are especially likely to damage the subject's health (see Gruenbaum, 5–7), but the nearly universal condemnation is not confined to those practices. Medical complications are a concern but are not at the core of the objection to FGM. I am aware of no critic of FGM who claims that it would be acceptable if performed according to normal surgical protocols.

45 There is considerable variation in the effect on women's sexual experience. Gruenbaum, Female Circumcision Controversy, 133–57.

46 See Toubia, Anika Rahman and Nahid, Female Genital Mutilation: A Guide to Laws and Policies Worldwide (London and New York: Zed Books, 2000)Google Scholar.

47 Joint statement by the World Health Organization, UN Children's Fund (UNICEF), and UN Population Fund, February 1996, quoted in Gruenbaum, Female Circumcision Controversy, 198.

48 See generally Gruenbaum, Female Circumcision Controversy; Gilman, Sander L., “‘Barbaric’ Rituals?” in Is Multiculturalism Bad For Women? ed. Cohen, Joshua, Howard, Matthew, and Nussbaum, Martha C. (Princeton: Princeton University Press, 1999), 53–58Google Scholar. This is ignored in the summary condemnation of FGM by Susan Okin, “Is Multiculturalism Bad for Women?” in Is Multiculturalism Bad For Women? 14–15, and “Reply,” in Is Multiculturalism Bad For Women? 124–25. She treats FGM as if it were obvious that its only purpose is to help men control women.

49 Obermeyer, “Female Genital Surgeries,” 87.

50 See Gruenbaum, Female Circumcision Controversy; Toubia, Nahid, Female Genital Mutilation: A Call for Global Action (New York: Women, Ink, 1995), 35–37Google Scholar. This last factor suggests that many who participate in the practice might prefer to live in a world in which there were not pressure to conform to the custom, but dare not risk their daughters' economic futures by refusing to participate. See Mackie, Gerry, “Ending Footbinding and Infibulation: A Convention Account,” American Sociological Review 61 (1996): 999–1017CrossRefGoogle Scholar. But this does not mean that they are not consenting to the practice, given the circumstances in which they find themselves.

51 “The Idea of Public Reason Revisited,” 596. Rawls may be more deferential to this authority than his philosophy ought to imply. See Nussbaum, Martha, Women and Human Development: The Capabilities Approach (Cambridge: Cambridge University Press, 2000), 270–83CrossRefGoogle Scholar. But even with much less deference, the state would need some reason to invade parental prerogatives, and constructivism cannot supply this.

52 Political Liberalism, 60.

53 Ibid., 106.

54 Ibid., 79. Doubtless Rawls himself would have thought it highly relevant, but his constructivism does not capture this concern.

55 This is also noted in Ball, Morality of Gay Rights, 22. Martha Nussbaum observes that Rawls implicitly “make[s] personhood reside in (moral and prudential) rationality, not in the needs that human beings share with other animals” (Nussbaum, Martha, Frontiers of Justice: Disability, Nationality, Species Membership [Cambridge, MA: Belknap Press, 2006], 159Google Scholar).

56 “Kantian Constructivism in Moral Theory,” in Collected Papers, 305; emphasis added.

57 “The Idea of Public Reason Revisited,” 598.

58 Restatement, 157.

59 Creating Citizens: Political Education and Liberal Democracy (Oxford: Oxford University Press, 1997), 24–33.

60 See ibid., 39–42, 214–20.

61 Pleasure is only made morally pertinent at one point in Rawls's work, in the discussion of the Aristotelian principle. A Theory of Justice, 426/374 rev.

62 Bonnie Honig suggested to me that Rawls, in his determination to move beyond utilitarianism, may have failed to appreciate the importance of pleasure to human moral life.

63 Nussbaum, Martha, “Judging Other Cultures: The Case of Genital Mutilation,” in Sex and Social Justice (Oxford: Oxford University Press, 1999), 124Google Scholar.

64 It is less clear that Nussbaum can condemn the operation when performed upon adults. See Chambers, “Are Breast Implants Better than Female Genital Mutilation?”

65 The list of capabilities appears in many of Nussbaum's writings. One recent version is Frontiers of Justice, 76–78. Its elements include the ability to live a life of normal duration, the ability to have good health, the ability to move about freely, freedom from violence, reproductive choice, the ability to imagine, think, and reason, the ability to laugh and play, political and property rights on an equal basis with others, and many other things.

66 Callan, Creating Citizens, 147. Callan does not discuss male circumcision or ear-piercing.

67 Thanks to Richard Kraut for this formulation.

68 See Bayer, Ronald, Homosexuality and American Psychiatry: The Politics of Diagnosis, rev. ed. (Princeton: Princeton University Press, 1987), 183–86Google Scholar.

69 Restatement, 174.

70 Ibid.

71 Callan, Creating Citizens, 147.

72 Political Liberalism, 291.

73 See Chambers, “Are Breast Implants Better than Female Genital Mutilation?” 23.

74 “The Idea of Public Reason Revisited,” 599.

75 This assumption underlies Drucilla Cornell's claim that sexual pleasure is a necessary component of the Rawlsian primary good of self-respect. She claims that “sex and sexuality are formative to one's being,” and that “the struggle to become a person is inseparable from the psychic space needed to truly play with imposed and assumed sexual personae“ (The Imaginary Domain: Abortion, Pornography, and Sexual Harassment [New York and London: Routledge, 1995], 9). Sexual restrictions are improper when the create “hierarchical gradations of sexual difference that scar some of us as less than persons worthy of happiness” (10). The many women who support FGM do not, however, regard themselves as unworthy of happiness. They simply regard sex as less formative to their being and less important to their happiness than Cornell does.

76 Thanks to Anthony Laden for pressing me on this point.

77 Political Liberalism, 58.

78 Ibid., 13.

79 Ibid.

80 Ibid., 61.

81 Ibid., 13.

82 Ruth Abbey uses the comprehensive/noncomprehensive distinction in a different way. For her, a conception is comprehensive if it has implications outside the sphere that is conventionally deemed political. “It is unclear what remains of a strictly political conception [if, as Rawls states in his late work,] there is no domain or space immune from the principles of justice. What does a purely political liberalism demarcate if its principles penetrate all (or most) aspects of life?” Abbey, Ruth, “Back toward a Comprehensive Liberalism? Justice as Fairness, Gender, and Families,” Political Theory 35 (2007): 17CrossRefGoogle Scholar. For this reason, she thinks that Rawls embraces a comprehensive liberalism as soon as he holds that principles of justice apply to relations within families. Rawls's answer would be that liberalism is political, even when it regulates the family, because its only concern is to protect the exercise of the moral powers in the fundamental cases. Other concerns are excluded. Rawls always regarded the family as part of the basic structure. See Martha C. Nussbaum, “Rawls and Feminism,” in The Cambridge Companion to Rawls, 500–503 (collecting pertinent passages in Rawls's work).

83 Political Liberalism, 12–13.

84 Rawls, John, “Reply to Habermas,” Journal of Philosophy 92 (1995): 145Google Scholar. For similar formulations, see Political Liberalism, xlvii; “The Idea of Public Reason Revisited,” 585; Restatement, 37, 188–89. T. M. Scanlon explains why the strategy of surveying actual comprehensive views would not be satisfactory to Rawls. “It would be impossible to survey all possible comprehensive views and inadequate, in an argument for stability, to consider just those that are represented in a given society at a given time since others may emerge at any time and gain adherents” (“Rawls on Justification,” 164). On the other hand, a consensus built around the convergence of a contingent set of actual views may last a long time.

85 “The Idea of Public Reason Revisited,” 579.

86 Political Liberalism, 49 n. 1.

87 Ibid., 49 n. 2, citing Scanlon, T. M., “Contractualism and Utilitarianism,” in Utilitarianism and Beyond, ed. Sen, Amartya and Williams, Bernard (Cambridge: Cambridge University Press, 1982)Google Scholar. This concern about what it is reasonable to expect people to accept goes back to Rawls's early writings. See John Rawls, “Justice as Fairness,” in Collected Papers, 59. Freeman observes that the historical order of influence is from Rawls to Scanlon. (Justice and the Social Contract, 93, 148).

88 Political Liberalism, 60.

89 Colin McGinn, “Reasons and Unreasons” (review of T. M. Scanlon, What We Owe to Each Other), New Republic, May 24, 1999, 37. Similar objections have been raised by Jürgen Habermas and Cristina Lafont. Habermas, Jürgen, “Reconciliation Through the Public Use of Reason: Remarks on John Rawls's Political Liberalism,” Journal of Philosophy 92 (1995): 122Google Scholar; Lafont, Cristina, “Moral Objectivity and Reasonable Agreement: Can Realism Be Reconciled with Kantian Constructivism?” Ratio Juris 17, no. 1 (2004): 27–51CrossRefGoogle Scholar.

90 Political Liberalism, 137, emphasis added.

91 Ibid., xxxviii. See also “The Idea of Public Reason Revisited,” 582.

92 Rawls, Restatement, 133.

93 Freeman, Rawls, xiii.

94 The Law of Peoples, 14.

95 Freeman, Rawls, 379. See also “The Idea of Public Reason Revisited,” 578; Burton Dreben, “On Rawls and Political Liberalism,” in The Cambridge Companion to Rawls, 338–39.

96 The Law of Peoples, 32.

97 That the aim is to contain disagreement within a framework of mutual respect is particularly clear in Scanlon, T. M., “The Difficulty of Tolerance,” in Toleration: An Elusive Virtue, ed. Heyd, David (Princeton: Princeton Univ. Press, 1998), 226–39Google Scholar, which is cited with approval in Rawls, “The Idea of Public Reason Revisited,” 588 n. 42.

98 Smith, Steven D., “Symbols, Perceptions, and Doctrinal Illusions: Establishment Neutrality and the ‘No Endorsement’ Test,” Mich. L. Rev. 86 (1987): 266–332CrossRefGoogle Scholar; Smolin, David M., “Regulating Religious and Cultural Conflict in Postmodern America: A Response to Professor Perry,” Iowa Law Review 76 (1991): 1067–1104Google Scholar.

99 See Honig, Bonnie, Political Theory and the Displacement of Politics (Ithaca and London: Cornell University Press, 1993)Google Scholar.

100 Political Liberalism, 4.

101 For an elaboration of human rights on this basis, see Griffin, James, On Human Rights (Oxford: Oxford University Press, 2008)CrossRefGoogle Scholar. Griffin's work contains many valuable insights, but it is as incomplete as Rawls; it is unclear how his approach could defend a right against FGM.

102 Ibid., 223; “The Idea of Public Reason Revisited,” 584.

103 Nussbaum, Martha C., “Political Objectivity,” New Literary History 32 (2001): 883–906CrossRefGoogle Scholar.

104 Nussbaum, Frontiers of Justice, 78–80, 296–98.

105 Political Liberalism, 12–13.

106 “Political Objectivity,” 891. Elsewhere, she uses “freestanding” even more loosely, to refer to any intuition about value that is unconnected with a larger philosophical system. (Women and Human Development, 76, 83; Frontiers of Justice, 279, 280, 370).

107 Rawls rejects, as “political in the wrong way,” a conception of the primary goods according to which we “look at the various comprehensive doctrines actually found in society and specify an index of such goods so as to be near to those doctrines' center of gravity, so to speak; that is, so as to find a kind of average of what those who affirmed those views would need by way of institutional claims and protections and all-purpose means” (Political Liberalism, 39). This may, however, be an accurate description of Nussbaum's procedure.

108 Linda Barclay, “What Kind of Liberal Is Martha Nussbawn?” Sats—Nordic Journal of Philosophy 4 (2003): 17.

109 Nussbaum, Martha C., “Political Liberalism and Respect: A Response to Linda Barclay,” Sats—Nordic Journal of Philosophy 4 (2003): 29Google Scholar; see also Women and Human Development, 74.

110 Freeman observes that Nussbaum's capabilities list “is largely expositive; there is little detailed argument for the items on her list and nothing resembling a constructivist procedure like Rawls's original position to connect her principles of justice with an ideal of persons and society” (Freeman, Samuel, “Frontiers of Justice: The Capabilities Approach vs. Contractarianism,” Texas Law Review 85 [2006]: 391Google Scholar). Nussbaum writes that, with respect to each item on her list, “an intuitive argument must be made that a life without a sufficient level of each of these entitlements is a life so reduced that it is not compatible with human dignity” (Frontiers of Justice, 278–79).

111 See Nussbaum, Martha C., Liberty of Conscience: In Defense of America's Tradition of Religious Equality (New York: Basic Books, 2008), 168–69Google Scholar.

112 Yuracko, Kimberly A., Perfectionism and Contemporary Feminist Values (Bloomington: Indiana University Press, 2003), 41–46Google Scholar; Barclay, “What Kind of Liberal Is Martha Nussbaum?” 15–16.

113 See Koppelman, Andrew, “The Fluidity of Neutrality,” Review of Politics 66 (2004): 633–48CrossRefGoogle Scholar.

114 The Law of Peoples, 128.

115 “Reply to Habermas,” 146.