[JMP 1.

3 (2004) 295-312] 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 Rawlss 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. Rawlss argument for justice as fairness has been criticized for nonneutrality 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 states 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 structuresand concomitant promotion of that idealis seen, state neutrality implies substantive change. While as Susan Moller Okin avowedRawls 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

mong feminist philosophers, there has been substantial debate over the implications of Rawlss liberalism for womens equality. Some feminists, such as Susan Moller Okin, have accepted the fundamental structure of Rawlss liberalism, but have criticized Rawls himself for ignoring gender and remaining ambiguous regarding the status of the family, the structure of
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which affects womens life-chances: Rawlss theory neglect[s]gender.1 As 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 justice between the sexes?2 However, Okin herself argues that Rawlss theory of justice, if applied to the social structures that perpetuate womens inequality, has great potential for changing those structures; she accepts Rawlss theory (once it is made sensitive to gender) as a suitable theory of feminist justice.3 Other feminists, however, criticize liberalism as an ideology whose promise of equal rights obscures the mechanisms of oppression. Notably, Catharine MacKinnon has argued that liberal freedoms serve male power and obscure the extent of womens subordination.4 For example, freedom of speech has been used to protect pornography, which MacKinnon argues is harmful to women; this freedom, as MacKinnon sees it, protects the interests of men precisely where those interests are at odds with womens, while it appears to have no gender bias (since freedom of speech is every citizens right,
1. Susan Moller Okin, Justice, Gender, and the Family (New York: Basic Books, 1989), ch. 5, quotation from p. 89. See also Veronique Munoz-Dard, John Rawls, Justice in the Family, and Justice of the Family, The 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, A Theory of Justice (Cambridge, 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 of Peoples (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 Rawlss Reply to Okins Political Liberalism, Justice, and Gender , Social Theory 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 Bad for 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 (Cambridge, 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 MacKinnons 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 Theory, Canadian Journal of Philosophy Supplementary Volume 13 (1987), pp. 111-37.
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regardless of gender).5 In MacKinnons view, the supposedly objective, neutral state is in fact male.6 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 womens oppression. Given the unequal balance of power between men and women, protecting the family sphere from judicial scrutiny masked injustices. Again, in MacKinnons view, it is not coincidental that protected freedoms (such as speech) coincide with the areas in which womens inequality is now, in her view, maintained. One of MacKinnons central points, drawn from Marxist theory, is that because many choices are products of oppressive conditioning, liberal freedom of choice will perpetuate oppression. MacKinnons view is in contrast to Okins liberal feminism, for while Okin also recognizes that social conditioning and free individual choices perpetuate sexual inequality, she argues that while Rawlss Theorydoes not discuss such injustices of gender, [it] has great potential for doing so.7 Martha Nussbaum too has defended the project of liberal feminism against MacKinnons critique.8 A crucial difficulty with MacKinnons view is that her critique of liberalism seems to depend on a denial of freedom. Okin and Nussbaumlike many feministsare also concerned with how social pressures shape womens choices, but MacKinnon goes much further in suggesting that womens choices cannot be truly free within a patriarchal society.9 In this article, I argue that Rawlss liberalism can indeed be an ally for feminism. But in contrast to Okin and Nussbaum, I focus primarily on the issue of liberal neutrality, a topic suggested by MacKinnons work. Where neutrality is often taken to be at odds with feminismsince, for example, it seems feminist education in schools would conflict with itI 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 MacKinnons perspective, liberal neutrality is a deceptive fiction, concealing the states patriarchal bias. In contrast, I argue that the liberal
5. MacKinnon, Toward, pp. 195-214. 6. MacKinnon, Toward, 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 autonomy, p. 79. 9. See John D. Walker, Liberalism, Consent, and the Problem of Adaptive Preferences, Social Theory and Practice 21.3 (1995), pp. 457-71, and Elizabeth Brake, A Liberal Response to Catharine MacKinnon, Southwest Philosophical Studies 22 (2000), pp. 17-23.
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aspiration to neutrality supports feminist goals. I discuss two kinds of neutrality: neutrality at the level of justifying liberalism itself, and state neutrality in political decision-making.10 Both kinds are contentious within liberal theory. Rawlss argument for justice as fairness has been criticized for non-neutrality at the justificatory level. Rawls himself, in Political Liberalism, noted this problem in A Theory of Justice.11 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 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. Whileas Okin avowsRawls 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. Liberal Neutrality Liberal neutrality is the doctrine that the state should remain neutral between competing conceptions of the good, where an individuals 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 the traditional genderstructured family.12 Neutrality has been taken up widely by liberal theorists. For example, Ronald Dworkin has defined liberalism as the view that 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 the good life, or of what gives value to life.13 Thus, the foundational liberal tenet of moral equality directly implies liberal neutrality. Will Kymlicka writes, [a] central feature of contemporary liberal theory is its emphasis on neutralitythe view that the state should not reward or penalize particular conceptions of the good life but, rather, should provide a neutral framework within which different and conflicting conceptions of the

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, The Morality of Freedom (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, Theory, 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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good can be pursued.14 The doctrine of neutrality is often thought to be problematic, at many levels. First, some liberals have rejected the aspiration to neutrality between conceptions of the good, arguing that a commitment to moral equality need 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 whatever ends and values they possess.15 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 conflicts 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 privilege some comprehensive doctrines over others: for instance, a system providing abortion will privilege doctrines that see it as a legitimate medical procedure over those which see it as morally impermissible.16 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 neutral, 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.17 This issue is the subject of an important change which Rawls made in Political Liberalism to the view he defended in Theory of Justice. 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.18 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,
14. Kymlicka, Liberal Individualism, p. 883. 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 neutrality. 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.
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he argued that the disposition to take upthe standpoint of justice accords with the individuals good, giving as a reason for this the Kantian interpretation [of the theory of justice]: acting justly is something we want to do as free and equal rational beings.19 But this argument employs a premise about the nature of human good. It gives a Kantian conception of the good as a comprehensive doctrine, one in which acting justly accords with an agents 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, ideals of personal character, as well as ideals of friendship and of familial and associational relationships.20 Liberal neutrality, however, requires neutrality between comprehensive doctrines. Thus, since assuming a Kantian comprehensive doctrine conflicts with neutrality between comprehensive doctrines, Rawls rejects this move in Political Liberalism.21 Not only did the account of stability illicitly employ a Kantian conception 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.22 However, the idea of a society in which everyone acceptsthe same principles of justice conflicts with neutrality if justice as fairness is understood as a comprehensive doctrine.23 Rawls attempts to correct these problems in Political Liberalism by adjusting the scope of justice as fairness; it is not comprehensive, but narrowly political.24 As such, it is the possible subject of an overlapping consensus between various reasonable comprehensive doctrinesreligious, philosophical and moralwhich can agree to the regulatory principles of justice.25 Justice as fairness, as political, applies only to the basic structures of society and can slot into the various comprehensive doctrines found therein.26 In making these changes, Rawls was in part motivated by the circumstances of contemporary American society, especially the deep divisions over religion. In an interview, he explained the focus on religion in
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: his principles, like Kants 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-ii.<check page numbers> 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-ii<??>. He also revises the account of stability. 25. Rawls, Political Liberalism, p. 15. 26. Rawls, Political Liberalism, p. 11.
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Political Liberalism as motivated by his concern about the survival, historically, of constitutional democracythe problem is how do you see religion and comprehensive secular doctrines as compatible with and supportive of the basic institutions of a constitutional regime.27 Nevertheless, it is not clear either that the 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 plausible case for the stability of justice in a society deeply divided over questions of value.28 Some have suggested that the original account makes a more convincing case for the stability of the principles.29 Moreover, Political Liberalisms 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 of the good[and] for a sense of justice.30 But the features of individuals which Rawls picks out as constitutive of moral equality are themselves not neutral, because they reflect a conception of what is important about human beings.31 Justice as fairness is not neutral in one respect in which it claims to be neutral because it privileges one conception of the good, that is, one in which the individuals 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, Rawlss derivation of the principles of justice appears illegitimately to ignore competing conceptions of the good.32 The response that neutrality is not foundational but derived from the ideal of moral equality appears to beg the question.
27. Interview with Bernard Prusak, Politics, Religion and the Public Good: An Interview with Philosopher John Rawlss, Commonweal 125.16 (1998), pp. 12-18. 28. See Michael Huemer, Rawlss 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, Okins Political Liberalism, Justice, and Gender. Also, Susan Mendus has argued that Rawlss argument for the congruence of justice with the agents good need not invoke a comprehensive conception of the good, and so the account in Theory need not be inconsistentsee The Importance of Love in Rawlss Theory of Justice, British Journal of Political Science 29.1 (1999), pp. 57-75. 30. Rawls, Theory, 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 of the 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 Rawlss 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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Distinguishing between political and comprehensive doctrines, as Rawls does in Political Liberalism, does not meet this objection, because such a distinction is itself 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 individual and his or her morally significant features.33 For instance, a comprehensive 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.34 Or, a doctrine might allow such a distinction, but carve it differently: some feminist analyses of oppression are an example (consider the claim that the personal is political). Thus, MacKinnon might say in response to Political Liberalism that the distinction between comprehensive doctrines and the political implicitly excludes feminist considerations (which take issue with the content of various comprehensive doctrines and their effects in society) from justice as fairness.35 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-making can serve feminist goals. Here I will argue that the restriction of justice as fairness to the political is less fruitful; moreover, neutrality at the level of theory justification must be qualified as skeptical or agnostic, not pluralist. 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 neutralsince it presupposes no claims about the goodbut uses an epistemic argument to exclude doctrines that deny equality. It retains neutrality 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 governing such a state. My
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 Okins concern; but the concern deepens in proportion to the range of social practices which one sees as constitutive of, and reinforcing, inequality.
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account is closer to Theory, which I see as more compatible with a feminist perspective in this respect, than to Political Liberalism.36 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 personal character, as well as ideals of friendship and of familial and associational relationships.37 According to most feminist views, justice should regulate these spheres especially that of the family.38 Justice is not only a virtue of political institutions but is a virtue within the apparently private spheres of family and civil society.39 Some qualifications are important. The scope of justice should be distinguished from the question of the legitimate extent of state interference 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 attractive. 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, Rawlss distinction is incorrect). And within liberal theory, the restriction 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.40 However, allowing justice to be comprehensive conflicts with neutrality at the level of political decision-making, so I will defer this question.
36. Compare Okins Political Liberalism, Justice, and Gender on this point. 37. Rawls, Political Liberalism, p. 13. 38. See Jean Hampton, Feminist Contractarianism, in Louise Antony and Charlotte Witt (eds.), A Mind of Ones Own (Oxford: Westview Press, 1993), pp. 227-56. 39. I use civil society in Hegels sense. On this point, see Okin, Justice<give full title>, and John Tomasi, Individual Rights and Community Virtues, Ethics 101.3 (1991), pp. 52136. 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.
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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.41 I will suggest that a stronger account of rational constraints on belief shows why it is legitimate for certain conceptions of the 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, Rawlss more conciliatory approach is unlikely to either. This approach will illuminate the appeal of Rawlss liberalism to feminism, 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.42 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 evidence.43 Clifford argued that there is a normative requirement to evaluate our beliefs: it is wrong always, everywhere, and for any one, to believe anything upon insufficient evidence.44 Clifford gives an example of a shipowner 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 consequentialist and deontological. Cliffords consequentialist arguments are interestingly resonant with
41. Rawls distinguishes the rational and the reasonable. Rational applies to means-end reasoning, and reasonable to a willingness to enter discussions. 42. Of course, on Rawlss 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. Cliffords 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 Cliffords 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 comparing Cliffords arguments with Rawlss than with defending Cliffords conclusions. 44. William Kingdon Clifford, The Ethics of Belief, in Harrison Steeves and Frank Ristine (eds.), Representative Essays in Modern Thought (New York: American Book Company [originally published in Contemporary Review, 1877], 1913), pp. 46-72; quotation from p. 54.
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discussions of feminism, liberalism and stability. Where feminists warn that belief in gender hierarchy has subtle effects on womens 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.45 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 infect posterity.46 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 of the easily convinced, it is poised to slink back into savagery.47 These 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: [b]elief, that sacred faculty, which prompts the decisions of our will, and knits into harmonious working all the compacted energies of our being, is not ours for ourselves but for humanity.48 He castigates credulity, like lying, as a failure to revere the truth:
Habitual want of care about what I 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.49

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 Rawlss justification procedure: credulity, 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 purposesuch as choosing principles of justicea rule of honesty is rationally justified since the knowledge that ones interlocutors may be lying will make progress much more difficult. But credulity will also undermine debate by making truthtelling 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
45. Clifford, Belief, p. 50. 46. Clifford, Belief, p. 50. 47. Clifford, Belief, p. 53; John Stuart Mill, On Liberty (London: Penguin Books, 1985 [1859]). 48. Clifford, Belief, p. 50. 49. Clifford, Belief (1877) p. 53.<page ref for 1913 edn?>
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the best policy. But even if lying might be rational, believing too easily would never seem to be a good strategy in debate. In some cases, believing something 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 when one chooses it to motivate oneself, the dangers 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 credulity lets reason linger, in Cliffords phrase, in cloudcastles of illusion, where its keenness may atrophy in the delights of darling lies.<page ref? add quote marks?> One might, therefore, justify the exclusion of the beliefs of the credulous from the original position by introducing a rule of doubt. At the more fundamental level of justification, Cliffords 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.50 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 of the 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 discrimination, 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 Kants view, by failing to show respect for rational nature in oneself and others.51 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 Rawlss idea of political legitimacy, the exercise of political power is fully proper only when
50. As a character in David Leans 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. 51. Kants 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 reason he gives for this is that lying contradicts the purpose of the faculty of communication. Immanuel Kant, Practical Philosophy (ed. and trans. Mary Gregor; Cambridge: Cambridge University Press, 1996), pp. 552-53.
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it is exercised 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.52 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 reasonably be expected to endorse. Of course, reasonable people can disagree due to burdens of judgment. But Rawls would count more beliefs as reasonable 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 Cliffords arguments purport to do is raise the bar for the reasonablefor what we can, or should, take as a reason.53 Rawlss view that political justification must be reasonable involves normative assumptions about respect for individuals and the justification for the exercise of power over them. Giving reasonsor at least acting in a way for which one could give reasons which others could reasonably be expected to acceptis 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.54 Rawlss 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 will reject reason as the appropriate 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 liberal 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 unreasonable 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, womens nature. Predictions about the abilities of classes of people
52. Rawls, Political Liberalism, p. 137. 53. Rawls in fact claims the theory of justice is reasonable, not true, so Cliffords comments would have to be adjusted, mutatis mutandis, to emphasize the evaluation of reasons as opposed to the evaluation of true belief. 54. From Kants Groundwork of the Metaphysics of Morals, also to be found in Gregors Practical Philosophy, p. 80 (4:430).
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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 womens nature from the characteristics women exhibit in an unequal society in which women and men are subject to different expectations and upbringings. Under current conditions, we can have no grounds for making general claims about womens innate propensities and abilities.55 Someone might suggest instead 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. Rawlss defense of reasonableness in political justification (and my extended 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; Rawlss liberalism is radically, foundationally, egalitarian. MacKinnons critique of liberal neutrality as essentially male may have purchase instead as a critique of the misguided application of liberal principles. For example, as suggested before, the historical exclusion of marriage from justice reflected 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 of the interaction within it, were regulated by law. Feminism 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 structures 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, flexible working hours, parental leave for both parents, and gender-free schooling.56 As a basic
55. John Stuart Mill, The Subjection of Women (ed. Susan Moller Okin; Indianapolis: Hackett, 1988 [1869]). 56. Okin, Justice<give full title>, pp. 175-79. Okin also bases her arguments on the familys influence on moral development, in response to Rawlss 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
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structure of societyby Rawlss admissionthe family is subject to the principles of justice.57 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 womens responsibility. Shared parenting, flexible work hours and state-supported crches may support this goal and be compatible with neutrality. But education that encourages boys and girls equally to envision themselves as care-giversor billboard advertisements encouraging men to change diapersmight 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. MacKinnons complaints about liberal neutrality focus on how the abstraction of liberal theory ignores the concrete context and effects of its application. 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 MacKinnons view that standing practices often have a deeply patriarchal element, then neutrality in practice will require radical change. First, certain apparently private social structures arguably impede womens equality. But, second, these structures are not purely privatefor instance, it is mistaken to conceptualize civil society as a distinct sphere from the state and as free from state interference. Thus, state neutrality will require substantive change in state policies regulating these apparently private spheres, when standing regulation is premised on or promotes a certain conception of the good. Raz and Kymlicka have distinguished neutrality in deliberationthe states avoidance of invoking conceptions of the good in policy-makingand in consequencesthe states avoidance of promoting, as a result of its actions, a conception of the good.58 I will adduce both kinds 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 conflict between pursuing a career and having children. External obstacles to pursuing both include the expense of good childcare and the lack of flexibility in working hours imposed by many careers. The structures for pursuit of social primary goods are fitted for someone without the

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 principle in this context seems to me problematic. 57. Rawls, Theory, p. 7. 58. 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.
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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 workplace. 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.59 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 goodthat in which primary care-givers for young children stay home, while their partners work outside the home to support the family. 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 working 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 states involvement in all of these areas, it becomes clear that the state has substantial effects on working conditions. Neutrality between conceptions of the 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.60 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 neutraland 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 relationshipmonogamous, permanent, between two personsas worthy of recognition. Again, both in deliberation and effects, the state privileges this type of relationshipcorresponding to a certain conception of the good over other arrangements.61 When we consider how many of the basic
59. Green, Rawlss, p. 35. 60. Okin, Justice<give full title>, p. 16. 61. 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 of Feminist Philosophy
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structures of society are shaped by state regulation, and recognizethrough feminist or other critiquehow 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 of these.62 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 womens work, and employment that penalizes those 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 womens 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 of the good, for women, of living as fully equal members of society. 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 states involvement in the apparently private sphere is recognized, and the disproportionate influence of a sexist
13.4 (1998), pp. 1-17 and John McMurtry, Monogamy: A Critique, The Monist 56 (1972), pp. 587-99. 62. Dworkin, Liberalism, p. 141.
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conception of the good on those structuresand concomitant promotion of that idealis 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 primary 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.

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