Feminist Argument in Rawls: A Theory of Justice

Assess how convincing the feminist critique of Rawls A Theory of Justice is

In 1971 John Rawls published his book titled A Theory of Justice which has been praised by scholars for its unique stance explaining that freedom and justice are not mutually exclusive. Rawls aimed to demonstrate how societies were unequal and what can be done about it while supporting the most disadvantaged members of society. Some key ideas that he proposes are the ‘original position’ and the ‘veil of ignorance’ which are based on making life decisions impartially without any prior knowledge of circumstances, meaning that this hypothetical structure of society would be fair and equal. The book is often attributed to the revival of the study of political philosophy.  While it has received a great deal of praise, there are some convincing critiques available from different stances. In particular, the feminist approach offers a valid critique, most notably from Susan Okin. Scholars like Okin question whether Rawls’ theory of justice can be successfully applied to women and the family. They claim that this can only be applied to white middle-class males. This essay will argue that these feminists are not convincing as their arguments are too simplistic and far-reaching. They cannot prove that any of Rawls’ work is philosophically illogical and instead they seek to highlight negligible elements that are missing. However, the foundation of their criticism has some convincing elements that this essay covers.

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A key issue is the way that Rawls addresses the family. Equality within households would allow equality in the public sphere but Rawls fails to sufficiently address this. Feminists go as far as questioning whether the family as an institution should even exist in a just society. Rawls’ principles of justice are a contract between heads of families and by focusing on the heads of families, he is arguably focusing on male members of society. Many criticise the theory because the parties in the ‘original position’ are heads of families, whom feminists assume are male – despite Rawls never overtly claiming this. This weakens the argument as it is based on assumptions.[1] Smiley argues that ‘there is no good reason why heads of household have to be male… especially if individuals are construed as rational actors rather than as members of particular groups’.[2] This is a fair critique and many feminists consequently argue that a ‘genderless’ family structure is needed. Okin claims that ‘a just future would be one without gender’.[3] Rawls also states that his principles of justice cannot apply directly to the inner workings of a family but does apply to individual members. He claims that ‘the principles of justice are chosen behind a veil of ignorance”, meaning that the people participating in the contract are rational behind this veil, which should result in just principles.[4] This ignores how patriarchy within the family (the private sphere) can lead to inequality for women in wider society (the public sphere). Principles work within the basic structure of society which should include the family. Families are ‘non-political’ so are excluded from these public political spheres that the principles operate in.  He compares the family to other institutions in society which are voluntary, unlike the family which for most members is something you are born into and thus have no choice. This means that the family as an institution cannot be just. Okin argues that ‘the family is not a private association like a church or a university, which vary considerably in the type and degree of commitment each expects from its members, and which one can join and leave voluntarily’.[5] Children cannot join and leave the family voluntarily and therefore lack a sense a justice. McKeen supports this, stating that ‘children cannot participate in families with full autonomy’ but she credibly counters this by stating that ‘until children develop the capacity for autonomous decision-making, any association of which they are a part will not be fully voluntary’.[6] This could mean that the family is the best option that currently exists for children, further weakening the feminist argument. Bojer links this issue to feminism by arguing that ‘unless organization of the care and nurture of children are included in the social contract, the position of women in society is not resolved.’[7] This convincingly argues that Rawls has failed to negotiate justice for both women and children. When Rawls mentions the family, he ‘mentions it…not to consider whether or not the family “in some form” is a just institution, but to assume it’[8] The fact that much of his theory is based on assumption, gives the feminist critique a degree of validity.

However, Okin’s argument on the family becomes less convincing as she fails to describe how one can make a family just in a Rawlsian state. If the family was abolished, there is no clear way that feminists explain to restructure the raising of children. Even if you were to suggest other institutions such as the church, it can never be proven if they would be better. This leaves McKeen to argue that the best solution would be to ‘preserve the family in the basic structure of the well-ordered society and to extend to the family some robust form of autonomy and privacy.’[9] Nussbaum gives some clear alternatives to the nuclear family such as the village collectives in India and Israeli communal living, but these still have some elements of patriarchy. Rawls makes it clear that the social contract operates within the public sphere but also makes clear that the family operates in the private sphere which excludes the family from his theory and ignores the ways in which the family is in the public sphere such as government regulation on marriage and childcare. 

Susan Okin is a liberal feminist and is not completely disapproving of Rawls’ theory. When referring to Rawls’ book, Okin describes it as containing ‘illuminating and positive contributions to the subject of gender and justice’[10] She is not against the ‘liberal position’ and believes it can produce equality but not in the way that Rawls applies it.  She says that ’Rawls’s theory, if revised so as to include women, the family and issues of gender justice, has a great deal to be said for it”[11] Nevertheless, she claims that Rawls supports the private and public spheres which ultimately subordinate women into the housewife role while men are politically free in the public sphere. She claimed that Rawls was unable to understand “that the modern liberal society to which the principles of justice are to be applied is deeply and pervasively gender-structured.”[12] Okin’s main critique is that Rawls believes that the family is just as important as other structures but she thinks it is the most important structure in society as it is a patriarchal outlet that represses women.

Martha Nussbaum is against Rawls’ discount of emotions which is similar to Kant’s way of thinking. Nussbaum agrees with Okin’s ideas of the family being the most important structure and disagrees with Rawls’ that the western nuclear family is the best form of family. She has a list of capabilities that the state should promote and some of them are directly beneficial for women, for example bodily integrity which would include freedom from sexual assault. Bernstein summarises that Nussbaum’s ‘basic capabilities are closely related to human rights, understood as rights that people have whether or not their circumstances enable them to exercise or enjoy these rights’[13] Nussbaum believes that if a form of family other than the nuclear family can promote these capabilities better, then it should be endorsed. She also questions whether his theory can be applied globally, especially as third world countries have a greater need for progress. Rawls focuses mainly on western liberal democracies which had already achieved some feminist progress at the time he was writing and to an even greater extent today. Consequently, Rawls’ theory cannot apply evenly to every society as the treatment of women differs significantly. Nevertheless, her capabilities have some similarities with Rawls’ ideas and she admits that her approach and Rawls’s ‘are very close…both of us take our bearings from the idea of the dignity and worth of humanity’.[14] Rawls refers to primary goods as being ‘rights, liberties, and opportunities, income and wealth” as well as ‘the social basis for self-respect’.[15] These are not dissimilar to the capabilities that Nussbaum has created, and she herself states that ‘the capabilities approach…is very close to Rawls’s approach using the notion of primary goods’[16] Bojer convincingly summarises ‘a just society in the Rawlsian meaning of justice, would be a society with full equality between women’s and men’s capabilities’.[17]

Furthermore, the fact that Rawls’ has shown discontent, responded to the critiques and has revised some of his ideas, demonstrates that he could have a genuine concern for the feminist cause. This would make the feminist critiques post-reinstatement less valid. Feminists also tend to ignore some aspects that are pro-feminist. For example, in the ‘original position’, people are ignorant of biological aspects such as sex, so it is arguably impossible to be directly prejudiced to women regardless of the family structure. The unknown elements under the ‘original position’ that Rawls mentions are ‘his place in society, his class position or social status, … his fortune in the distribution of natural assets and abilities, his intelligence and strength, and the like, … his conception of the good, the particulars of his rational plan of life, [and] even the special features of his psychology.’[18] Feminists are keen to point out that sex is not mentioned. In addition, the ‘original position’ is ‘monological and that the one voice heard is that of a man’.[19] Rawls uses generic male terms ‘he, mankind, men, his’.[20] Okin argues that Rawls is monological because ‘both he himself and the majority of his commentators are white middle class males’.[21] Nevertheless, she admits that ‘the original situation itself as described by Rawls should lead to a social contract acceptable to, and taking into account the interests of, every kind of human being, and in particular, the interests of women as well as men’[22] Bojer notes that ‘women are represented in the ‘original position’ by the fact that the souls, when incarnated, may turn out to be women.’[23] The chances of being born female is almost exactly equal to that of being born male. Consequently, the feminist argument is weakened as it is dependent on biological factors that cannot be predicted. Furthermore, the basic equal rights explained by Rawls, are supposed to apply to everyone and gender should not be a factor. A large notion of his theory is that people are not to be punished by factors that they cannot control, meaning gender should be one of these factors. His theory also argues that disadvantaged members of society should benefit, and arguably, under patriarchy, women are largely disadvantaged. Therefore, Rawls is aiming to benefit women, possibly indirectly, but it is still applicable. 

To conclude, it is evident that feminists have a somewhat valid argument. Rawls mostly excludes women and the family from his theory, although he acknowledges that the family is a key part of societies’ basic structure. This is not far reaching enough for feminists. It is not until Rawls’ later revisions that the feminist agenda is sufficiently addressed. Even with these revisions, many feminists are still unsatisfied – which is unjust. This is because Rawls’ theory aims at the liberation of wider society and it would be unfair if it focused too heavily on one cause. However, a large part of the feminist critique is based on the assumptions made by Rawls that cannot be verified. Okin explains that ‘A feminist reader finds it difficult not to keep asking: “Does this theory of justice apply to women, or not?”[24] Therefore, the ambiguity that feminist critics take issue with is justified but their proposed solutions are ultimately not convincing enough to denounce Rawl’s theory as unjust. His theory could arguably be a feminist one if gender roles are removed in the ‘original position’. Abbey neatly summarises that feminist responses are ‘critical yet hopeful’, yet without adequate philosophical solutions, they will remain hopeful.[25]

Bibliography

Abbey Ruth, (2000), Feminist Interpretations of John Rawls, Penn State University Press

Bernstein Alyssa R, (2007) ‘Nussbaum versus Rawls’, from Global Feminist Ethics, , edited by Rebecca Whisnant and Peggy DesAutels, Rowman & Littlefield Publishers

Bojer Hilde, (2002), ’Women and the Rawlsian Social Contract’, Social Justice Research, 15: 393, Kluwer Academic Publishers-Plenum Publishers, https://doi-org.ueaezproxy.uea.ac.uk:2443/10.1023/A:1021223225278, Accessed 30 July 2018

McKeen Catherine, (2006), ‘Gender, Choice and Partiality: A Defense of Rawls on the Family’, Essays in Philosophy, Volume 7, Issue 1 Liberalism, Feminism and Multiculturalism, article 9

Nussbaum Martha, (2000), ‘The Future of Feminist Liberalism’, Proceedings and Addresses of the American Philosophical Association Vol. 74, No. 2

Okin Susan, (1987), Justice and Gender, Philosophy & Public Affairs, Vol. 16, No. 1 pp. 42-72, Wiley

Okin Susan, (1989), Justice, Gender and the Family, Basic Books,171

Putnam R.A., (1995), ‘Why not a feminist theory of justice?’, Nussbaum, M. C., and Glover, J. (eds.), Women, Culture and Development, Clarendon Press, Oxford, 298–331

Rawls John, , (1971), A Theory of Justice, Harvard University Press, 12

Smiley Marion,(2004), ‘Gender, Democratic Citizenship v. Patriarchy: A Feminist Perspective on Rawls’, Fordham Law Review, Vol 72., Issue 5, Article 11, 1610

[1] Hilde Bojer, ’Women and the Rawlsian Social Contract’, Social Justice Research,(2002) 15: 393, Kluwer Academic Publishers-Plenum Publishers, https://doi-org.ueaezproxy.uea.ac.uk:2443/10.1023/A:1021223225278, Accessed 30 July 2018, 405

[2] Marion Smiley, ‘Gender, Democratic Citizenship v. Patriarchy: A Feminist Perspective on Rawls’, Fordham Law Review (2004), Vol 72., Issue 5, Article 11, 1610

[3] Susan Okin, Justice, Gender and the Family, (1989), Basic Books,171

[4] John Rawls, A Theory of Justice, (1971), Harvard University Press, 12

[5] Susan Okin, Justice, Gender and the Family, (1989), Basic Books, 96-97

[6] Catherine McKeen, ‘Gender, Choice and Partiality: A Defense of Rawls on the Family’, (2006), Essays in Philosophy, Volume 7, Issue 1 Liberalism, Feminism and Multiculturalism, article 9, 9-10

[7]Hilde Bojer, ‘Women and the Rawlsian Social Contract’, Social Justice Research,(2002) 15: 393, Kluwer Academic Publishers-Plenum Publishers, https://doi-org.ueaezproxy.uea.ac.uk:2443/10.1023/A:1021223225278, Accessed 30 July 2018, 393

[8] Susan Okin, Justice and Gender, Philosophy & Public Affairs, Vol. 16, No. 1 (Winter, 1987), pp. 42-72, Wiley, 48

[9]Catherine McKeen, ‘Gender, Choice and Partiality: A Defense of Rawls on the Family’, (2006), Essays in Philosophy, Volume 7, Issue 1 Liberalism, Feminism and Multiculturalism, article 9, 14

[10] Susan Okin, Justice and Gender, Philosophy & Public Affairs, Vol. 16, No. 1 (1987), pp. 42-72, Wiley, 44

[11] Susan Okin, Justice, Gender and the Family, (1989), Basic Books, 291

[12] Ibid, 89

[13] Alyssa R. Bernstein, ‘Nussbaum versus Rawls’, from Global Feminist Ethics, 2007, edited by Rebecca Whisnant and Peggy DesAutels, Rowman & Littlefield Publishers, 120

[14] Martha Nussbaum, ‘The Future of Feminist Liberalism’, (2000), Proceedings and Addresses of the American Philosophical Association Vol. 74, No. 2, 67

[15]John Rawls, A Theory of Justice, (1971), Harvard University Press, 162

[16] Martha Nussbaum, ‘The Future of Feminist Liberalism’, (2000), Proceedings and Addresses of the American Philosophical Association Vol. 74, No. 2, 88

[17]Hilde Bojer, ‘Women and the Rawlsian Social Contract’, Social Justice Research,(2002) 15: 393, Kluwer Academic Publishers-Plenum Publishers, https://doi-org.ueaezproxy.uea.ac.uk:2443/10.1023/A:1021223225278, Accessed 30 July 2018, 406

[18]John Rawls, A Theory of Justice, (1971), Harvard University Press, 137

[19] R. A Putnam, ‘Why not a feminist theory of justice?’, (1995), Nussbaum, M. C., and Glover, J. (eds.), Women, Culture and Development, Clarendon Press, Oxford, 298–331

[20]Susan Okin, Justice and Gender, Philosophy & Public Affairs, Vol. 16, No. 1 (1987), pp. 42-72, Wiley, 45

[21] Hilde Bojer, ‘Women and the Rawlsian Social Contract’, Social Justice Research,(2002) 15: 393, Kluwer Academic Publishers-Plenum Publishers, https://doi-org.ueaezproxy.uea.ac.uk:2443/10.1023/A:1021223225278, Accessed 30 July 2018, 396

[22] Ibid, 396

[23] Ibid, 395

[24]Susan Okin, Justice and Gender, Philosophy & Public Affairs, Vol. 16, No. 1 (1987), pp. 42-72, Wiley, 45

[25] Ruth Abbey, Feminist Interpretations of John Rawls (2000), Penn State University Press, 4