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Sex Equality And/Or the Family: from Bloom Vs. Okin to Rousseau Vs. Hegel

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Sex Equality And/Or the Family: from Bloom Vs. Okin to Rousseau Vs. Hegel Sex Equality and/or the Family: From Bloom vs. Okin to Rousseau vs. Hegel Susan Moller Okin, Justice, Gender, and the Family. New York: Basic Books, 1989. Pp. viii, 216. $19.95 (cloth), $10.95 (paper). Andrew Koppelman* This article is slightly mislabeled, since I shall not attempt a compre- hensive treatment of Susan Okin's worthy contribution to feminist polit- ical theory. Rather, I shall focus on Okin's response to one well-known conservative objection to sex equality: that sex equality tends to destroy important forms of communal association, specifically the family. This response is only one part of her argument, but as we shall see, it is a foundational part. I. THE CONSERVATIVE CLAIM The family, so the conservative argument goes, cannot endure unless women willingly subordinate themselves to men and children. The pres- ent essay's aims are twofold. First, I will argue that Okin's response, which is drawn from the liberal political theory of John Rawls, is inade- quate to answer the conservative objection, because it implausibly assigns infinite weight to the value of justice as against other human aspirations. Second, I will offer a different and, I claim, better response: that insofar as it rests on a sentimental idealization of the communal bonds that the family at its best fosters, the conservative objection is internally incoherent. What I have called the conservative objection must be distinguished at the outset from another "conservative" argument, which holds that respect should be accorded to the desires of those who value the tradi- * I am grateful for the helpful comments of Bruce Ackerman, Jeff Baird, Jane Bennett, Shelley Burtt, Henry Cohen, Wayne Edisis, Rogan Kersh, Steve Lenzner, David Mayhew, Valerie Quinn, Rand E. Rosenblatt, Doug Reed, Rachel Roth, Rogers Smith, Steven Smith, Jim Tourtelott, and audience members at the 1991 convention of the American Political Science Association, where an earlier version of this article was presented. This essay had its beginnings in course papers for Professors Nancy Cott, Owen Fiss, Anthony Kronman, and Steven Smith, all of whom I thank for their encouragement. This essay is dedicated to my wife, Valerie Quinn. Yale Journal of Law & the Humanities, Vol. 4, Iss. 2 [1992], Art. 10 Yale Journal of Law & the Humanities [Vol. 4: 399 tional meanings of gender and want to shape their lives in accordance with them.' This is really a liberal argument, since it rests on the right of the individual to shape her life as she sees fit. Okin is a liberal herself, and she does not deny this argument's power. Here, however, I am addressing a stronger claim on behalf of traditional gender patterns: that these patterns, even though they assign persons higher and lower social statuses on the basis of ascribed characteristics, are inherently more desirable than the alternatives, and that those who don't recognize this should be induced (whether by state power or by social customs and sanctions) to conform their behavior to those patterns. The conservative argument deserves to be taken seriously. While con- cerns for the maintenance of social order are no longer invoked to defend racial hierarchy, these concerns seem more persuasive and troubling in discussions of gender and sexual orientation, because the traditional meanings of these statuses are intimately linked to the deeply valued institution of the family. The conservative objection to sex equality derives much of its force from a healthy suspicion of any project that seeks to reconstruct basic social institutions. The science of government being . .. so practical in itself, and intended for such practical purposes, a matter which requires expe- rience, and even more experience than any person can gain in his whole life, however sagacious and observing he may be, it is with infinite caution that any man ought to venture upon pulling down an edifice which has answered in any tolerable degree for ages the common purposes of society, or on building it up again, without having models and patterns of approved utility before his eyes.2 What Burke says about government could equally be said of any other major institution. Put baldly, given that we know of no society that has been able to do without male dominance, why should we imagine that we can? This cannot conclude the argument. The past successes of modern egalitarianism constitute a powerful reply to the conservatives: there was a time when the same argument could be (and was) made on behalf of slavery. From the beginning, that egalitarianism has depended on the overcoming of Burkean fears, and to some extent it has shown those fears to be exaggerated. The significance of gender as well as that of race has been reshaped-constitutional law, employment law, and the law of domestic relations, for example, have all been dramatically transformed in recent years in the name of sex equality-and many of these changes in women's status are uncontroversial today. Nonetheless, many Ameri- 1. See, e.g., DAVID L. KIRP, MARK G. YUDOF, & MARLENE STRONG FRANKS, GENDER JUSTICE (1986); MICHAEL LEVIN, FEMINISM AND FREEDOM (1987); Johnson v. Transportation Agency, 480 U.S. 616, 668 (1987) (Scalia, J., dissenting). 2. EDMUND BURKE, REFLECTIONS ON THE REVOLUTION IN FRANCE 152 (Conor Cruise O'Brien ed., Penguin Books 1968). https://digitalcommons.law.yale.edu/yjlh/vol4/iss2/10 2 Koppelman: Sex Equality and/or the Family 1992] Koppelman cans feel a persistent hesitation about pushing sex equality to its logical conclusions, such as allowing gays to marry.' As long as there is such hesitation, legal theorists have an obligation to consider whether it has any rational basis. To the extent that such a rational basis has been articulated, it ought to be addressed. II. THE LIBERAL RESPONSE Okin recognizes this. Her Justice, Gender, and the Family' uses a crit- ical examination of the most influential contemporary political theorists, some of whom are proponents of the conservative objection I have just described, as a vehicle for proposing a radical reform of contemporary gender arrangements. The basic organization of the book is similar to that of her earlier work, Women in Western Political Thought,5 one of the earliest feminist studies of the history of political philosophy. There she argued persuasively that the major political theorists of the Western tra- dition, specifically Plato, Aristotle, Rousseau, and Mill, had failed to confront the radical implications of their theories when applied to issues of justice and gender. Here she undertakes a similar examination of con- temporary theorists and, after disposing of Michael Sandel, Allan Bloom, Alasdair MacIntyre, and Robert Nozick, goes on to erect a positive the- ory founded on ideas of John Rawls and, to a lesser extent, Michael Walzer. These writers "have largely bypassed the fact that the society to which their theories are supposed to pertain is heavily and deeply affected by gender, and faces difficult issues of justice stemming from its gendered past and present assumptions." 6 If these theories are examined from a perspective "that treats women, as well as men, as full human beings to whom a theory of social justice is to apply," 7 0k in argues, some of them are completely demolished, while others are transformed into feminist theories. Neither book is addressed solely to the converted. Perhaps more than any other major feminist political theorist, Okin seeks to persuade "mainstream" political theorists of the importance of feminist concerns. In general, the book succeeds admirably. The prose is forceful and lucid, and the critiques are uniformly cogent and sometimes devastating. (Most notably, Okin shows that it has apparently never occurred to Nozick, who argues that people are entitled to own what they produce, that human beings are themselves produced by others. It follows that 3. It should be obvious that the law's refusal to sanction gay marriage cannot be defended on liberal grounds. Hence the liberal objection to sex equality cannot fully account for this hesitation. 4. SUSAN MOLLER OKIN, JUSTICE, GENDER, AND THE FAMILY (1989) [hereinafter JUSTICE, GENDER]. 5. SUSAN MOLLER OKIN, WOMEN IN WESTERN POLITICAL THOUGHT (1979) [hereinafter WOMEN]. 6. OKIN, JUSTICE, GENDER, supra note 4, at 8. 7. Id. at 23. Published by Yale Law School Legal Scholarship Repository, 1992 1 Yale Journal of Law & the Humanities, Vol. 4, Iss. 2 [1992], Art. 10 Yale Journal of Law & the Humanities [Vol. 4: 399 human beings are legitimate objects of property, and Nozick's logic thus leads to a slave society rather than a libertarian one.) The book culminates in a powerful portrait of women's present situation, which combines empirical and normative theory with great skill. Unhappily, however, Okin never directly addresses the most salient concerns of her conservative interlocutors. In this essay, I will show how she fails and will suggest a better approach. In the earlier book, Okin showed that the subordination of women is unjustifiable in terms of any of the major traditions of Western political thought. Now she offers an explanation for that subordination: "Under- lying and intertwined with all these inequalities is the unequal distribu- tion of the unpaid labor of the family."8 This division of labor reinforces and is reinforced by women's economic dependency: Employed wives still do by far the greatest proportion of unpaid family work, such as child care and housework. Women are far more likely to take time out of the workplace or to work part-time because of family responsibilities than are their husbands or male partners. And they are much more likely to move because of their husbands' employment needs or opportunities than their own. All these tendencies, which are due to a number of factors, including the sex segregation and discrimination of the workplace itself, tend to be cyclical in their effects: wives advance more slowly than their hus- bands at work and thus gain less seniority, and the discrepancy between their wages increases over time.
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