Rawlsian Stability & Feminism
Mary Lyn Stoll
In a Theory of Justice, John Rawls defends two principles of justice, in part, by an appeal to stability. Rawls claims that coupled with the publicity condition, the two principles are preferable because they are more likely to encourage stability than are average utilitarian theories. (1) Rawls's radical and feminist opponents have found this appeal to stability problematic since they believe that achieving justice may sometimes necessitate the de-stabilization of society. Moreover, utilitarian critics argue that even if stability is granted as justification for a theory of justice, it seems at least plausible that institutions structured according to an average utilitarian conception of justice could yield a society that is just as stable. I will argue that with an accurate understanding of Rawls's appeal to stability, these sorts of criticisms lose their strength, and Rawls's argument for the stability of his two principles over average utilitarianism appears that much more convincing. Thus, by getting clear on what Rawls's appeal to stability entails, we gain a fuller understanding of his theory and its justification. Finally, I will consider a revised feminist critique that appeals to the appropriate understanding of stability and go on to suggest how Rawls might respond to such a critique.
I. PROBLEMS WITH AN APPEAL TO STABILITY
A. FEMINIST CRITICISMS
Following the publication of Political Liberalism, many feminists were dissatisfied with Rawls's even stronger appeal to overlapping public consensus and stability. (2) Amy Baehr, for instance, argues that feminists criticisms of the family as an unjust institution can no longer be sustained by an appeal to Rawls given this added emphasis upon stability. The family, as it is currently structured, is the site of oppression for women demanding that women, whether they work in or outside the home, continue to take on extra burdens for child care and household maintenance. Radically changing the family would represent a major destabilization of society and would thus be unwelcome. She contends that in the original position, given its call for overlapping consensus and stability, the family as currently structured though actually unjust would be seen as acceptable. This sort of conclusion is strengthened by Rawls's dichotomization between the public and the private. According to a Rawlsian liberalism, the private cannot be infringed upon so long as it is part of a reasonable comprehensive view that recognizes the two principles in public matters. Baehr contends that so long as the majority 'reasonably' disagree, the family will be counted as part of the private sphere where the two principles would allow more freedom for diversity. Thus, in order to respect reasonable disagreement in the private realm Rawls's two principles would stymie efforts to make current family structures maximally just. (3) Because of his appeal to stability and consensus, enacting Rawls's theory would lead to injustice for women and others whenever the injustice suffered is 'private' and not recognized fully by the majority of persons.
J. S. Russell also worries that "the value of Rawls's theory of justice, and of his principle of equality of opportunity are importantly limited for certain feminist purposes by the respect for pluralism and liberty that is built into his methodology." (4) Since traditionalists believe that the family is just as it stands, they would veto any measures that entailed that their way of life would be unjust. Thus again, since feminist concerns are controversial, Rawls's theory would allow for unjust familial institutions in the interests of stability and in keeping with the need for consensus. (5)
The problem arises because stability can and often does hinge upon unjust practices. There is no reason to think that unjust societies could not be stable, especially if such a society could maintain the semblance of justice. The histories of both racism and sexism provide cases in point. Any number of seemingly stable societies have been decidedly unjust including perhaps our own. Injustice may actually fuel stability once such injustices have become institutionalized. Consider the overall stabilizing affect that women's taking up of added burdens in the home has had. Without alternative means in place to insure the proper nurturing and care of families, society is de-stabilized in many ways. Simply because a particular theory of justice might yield a more stable society, this need not entail that such a theory would in fact be most likely to promote the ends of justice.
B. AN AVERAGE UTILITARIAN APPEAL TO STABILITY
Even if, unlike feminist and other radical opponents of Rawls, one were to accept the appeal to stability, it is not altogether clear that average utilitarian conceptions of justice might not also be able to yield a society that is at least as stable as one governed by Rawls's two principles. The draft stands as a long-standing and relatively stable institution that is not just according to Rawls's two principles, but which may be considered just in terms of average utility. The draft does not distribute its burden equally among all persons in society since not all persons have an equal chance of being drafted. (6) Only healthy young men who meet a series of general requirements for being a minimally decent soldier will be eligible. Moreover, the draft is involuntary unless one accepts jail or manages to achieve conscientious objector status.
Even if the draft were random and the selection of draftees was made more fair, the draft would still violate the first principle of justice since it entails infringement upon basic rights. Such infringement is inadmissible according to the first principle, even if, as is usually claimed when initiating the draft, it is for the general benefit of all. Once drafted a number of rights are infringed upon and primary goods limited or denied. Life plans must be set aside or put on hold. Self-esteem is often gravely diminished in boot camp with continued reminders that the soldier is a mere grunt amounting to nothing apart from his troop. Freedom of speech is limited (7) A soldier, moreover, is not even granted an appeal to the traditional juridical system of appeals. Instead, he must contend with military law. Clearly basic rights of draftees are infringed upon and thus the draft as it now stands cannot be considered just according to the two principles.
Here, the average utilitarian conception of justice has been institutionally enshrined without incurring excessive societal instability as a result. Such an institution may have a strong stabilizing affect upon society. (8) The draft demands excessive and involuntary self-sacrifice in order to increase or at least prevent the deterioration of the average standing of each citizen. It could be justified, however, on average utilitarian grounds so long as the average citizen was better off as a result. A society that could not make an appeal to the draft or something like it would arguably be less stable overall.
Moreover, an average utilitarian could appeal to something like the two principles in less severe cases in order to get many (though certainly not all) of the societal benefits that Rawls claims his theory entails for the average citizen while still allowing the option to appeal to average utilitarian justifications for societal institutions when the two principles would not increase average utility. Thus, it seems that even if stability is accepted as a relevant theoretical criteria, an average utilitarian account of justice plausibly might lead to the development of a society that is just as, if not more, stable than one in which the two principles are adopted.
II. IN DEFENSE OF RAWLS'S APPEAL TO STABILITY
A. RAWLS'S UNDERSTANDING OF 'STABILITY'
Both the feminist and average utilitarian objection to Rawls's appeal to stability simply misconstrue Rawls's appeal to stability. Rawls does not claim that the two principles will lead directly and immediately to a perfectly stable society. Rather his appeal to stability is an appeal to the stability of the theory of justice (and not necessarily the society as a whole). Rawls admits that simply because a society is stable this is by no means a sufficient condition for claiming that it is just: (9) "a well-ordered democratic society meets a necessary (but certainly not sufficient) condition of realism and stability." (10)
When Rawls appeals to stability, he refers to the stability of a system as understood by mathematicians and economists. A system is in equilibrium once it has reached a state that persists indefinitely over time so long as no external forces intervene. A system is stable when interruptions in equilibrium arouse other forces internal to the system that then bring it back to equilibrium. A system's equilibrium is unstable when an interruption leads to further interruption and even greater changes. (11) In this case, "equilibrium and stability are to be defined with respect to the justice of the basic structure and the moral conduct of individuals." (12) Thus, justice as fairness will be more stable than an average utilitarian conception of justice because "it generates its own support....it is likely to have greater stability than traditional alternatives, since it is more in line with the principles of moral psychology." (13)
Rawls does not claim that the two principles are to be preferred in the original position simply because they will result in a more stable society in a general sense. While this ought to be the natural outcome of adopting the two principles, (14) an appeal to the immediate overall general stability of society is not what makes the two principles the more attractive theory of justice. Rather, the two principles are more attractive because they are more likely to yield an understanding of justice that is self-sustaining. This is important since a theory of justice needs to be in keeping with our moral psychology. (15) A sense of justice must be instilled into the members of society so that they will be less inclined to act upon the temptation to injustice: "One 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 to act unjustly." (16)
Thus, the choosing of a theory of justice is best seen as proceeding in two stages. In the first stage, principles are selected without taking into account the peculiar moral psychologies of the persons involved. At this stage both average utilitarianism and the two principles are viable options. In the second stage, persons in the original position "ask whether a society well-ordered by the principle selected in the first part would be stable: that is, generate in its members a sufficiently strong sense of justice to counteract tendencies to injustice...unless it is so, it is not a satisfactory political conception of justice and must be in some way revised." (17) To achieve this sense of justice, a theory of justice must be understandable and accessible; it must foster a sense of self-worth and the desire to reciprocate in kind. A stable sense of justice is self-propagating since it discourages individuals from acting unjustly and encourages them to reciprocate when others treat them in a just fashion. (18) Without a stable sense of justice (that may take time to develop), the theory of justice may be called into question and may require revision. The appeal to stability may be taken as a sort of practical justification. A stable theory of justice is one that will actually work in the long term given our moral psychologies and general facts about our society. (19) Thus, as Rawls claims, "conceptions of justice must be justified by the conditions of our life or not at all." (20)
B. A RAWLSIAN RESPONSE TO FEMINIST AND AVERAGE UTILITARIAN CRITICS
With the appropriate understanding of how stability is to be defined both the feminist and average utilitarian criticisms of Rawls's theory discussed earlier no longer hold. As regards the feminist worry that Rawls is willing to sacrifice justice for stability in a democratic society, this is straightforwardly not the case. Stability is only important as regards the propagation of a sense of justice. The average utilitarian claim to stability also becomes suspect once stability is defined by reference to whether or not a theory of justice is self-propagating. Rawls argues that the average utilitarian account of justice fails on this account. Since an average utilitarian account of justice may demand large sacrifices of some persons, it must rely upon a particularly strong sense of sympathy. One must be willing to strongly identify with the collective and its collective good in order for such personal sacrifice to be seen as acceptable. The utilitarian must presuppose feelings of sympathy on the part of individuals. Yet, if the individual suffers from an abrogated sense of self worth as a result of such self-sacrifice and is resentful, she will respond in kind by simply refusing to accept the burdens of the collective. As a result, average utilitarianism may be seen as a less stable theory of justice. If altruism were rampant, then perhaps the average utilitarian account would fare better. Since it is relatively rare, however, we cannot simply presuppose it else we risk undermining what sense of justice individuals already have. (21)
This might help to explain why an average utilitarian justification of the draft works so well. In times of war, people do identify more strongly with the collective. Since the entire nation is in danger and individuals must rely upon it if they are to safeguard their own personal interests, individuals will tend to identify more fully with the collective. Moreover, the collective good in such cases is somewhat clearer. Rawls admits that if our moral psychology were different a different theory of justice might apply. In times of war, our moral psychology may be changed and thus a different theory of justice might apply. Here and now, however, our moral psychology does not admit to such strong identification with the collective. In order to keep with the general facts of our moral psychology, we ought to choose the two principles. Over time the two principles will lead to a stronger sense of fraternity as individuals come to benefit from living in a just society and learn to reciprocate in kind. Thus, the two principles do not discourage fellow feeling. Rather, the two principles encourage the development of fellow feeling, but only by not presupposing it and instead taking fellow-feeling as a goal towards which to strive.
III. A REVISED FEMINIST CRITIQUE AND RAWLSIAN RESPONSE
Feminist critics of Rawls, however, might revise their critique in light of an appropriate understanding of Rawls's appeal to stability. They may argue that in fact the two principles will not lend to self propagation so long as women and other underprivileged groups still feel that society has treated them in an unjust fashion. Feminists could argue that Rawls's tacit presumption of a split between the private and the public whereby many of the institutions that oppress women including the family are seen as private, and thus immune to the claims of justice, does lead to injustice. Thus, overzealousness in the attempt to make room for personal freedom in adopting a diverse number of reasonable and comprehensive world views may undermine the attempt to develop a just society. By hinging the acceptance of a theory of justice upon overlapping consensus, Rawls allows for sexist institutions since the majority most likely believe that unjust traditional institutions are in fact just.
Rawls might respond by pointing out that justice as fairness does not merely attempt to reach a compromise between popular political positions: "The idea of an overlapping consensus is easily misunderstood given the idea of consensus used in everyday politics...we do not look to the comprehensive doctrines that in fact exist and then draw up a political conception that strikes some kind of balance of forces between them." (22) Insofar as the acceptance of women's traditional role in the family is the result of mere prejudice and historical bias, Rawls need not be committed to the clam that highly conservative views of the family are reasonable in the original position. While feminists may be right to point out that it is often difficult to fully examine one's considered opinions, this need not entail that this is impossible nor that it ought not to be expected of persons in the original position. If an institution is unjust because it is simply based upon traditional prejudices and biases, then it should be unacceptable in the original position. Given the prevalence of sometimes unconscious bias, persons in the original position would have to be especially careful not to overlook feminist concerns, but simply because one must be especially careful does not entail that persons in the original position are doomed to fail at efforts to set those biases aside.
Persons in the original position would also need to consider the ways in which sexism and oppression affect moral psychology since a theory of justice cannot be stable unless it is in keeping with the moral psychologies of the persons who must live under the institutions defined according to that principle. While Rawls does not explicitly discuss how moral psychology may be affected by oppression, clearly according to his own stipulations, he ought to given the affects that oppression may have upon moral psychology and thereby upon the stability of his theory.
Rawls also need not disagree with feminist claims that the family as an institution needs reform. If on due reflection the family as currently structured is unjust, then there is no reason why Rawls's two principles could not be used to justify making changes. The consensus required in order to implement means by which to transform institutions need not be identical to a general popular consensus. With full reflection, persons of the original position may well come to see the current structure of the family as unjust even if the majority of persons outside of the original position do not because of bias and self-interest. So long as consensus may be reached in the original position then even domains traditionally considered private such as the family might be considered political and restructured accordingly. (23)
By examining several criticisms of Rawls's appeal to stability, I have attempted to clarify exactly what Rawls's appeal to stability does and does not entail. Upon further clarification of Rawls's appeal to stability, the justification for choosing the two principles over an average utilitarian theory of justice appears even stronger. In light of a full understanding of Rawls's appeal to stability, I have also attempted to reformulate various feminist criticisms and to suggest a possible Rawlsian response. With an appropriate understanding of Rawls's theory entails, including perhaps various demands upon persons in the original position not fully addressed by Rawls, I conclude that Rawls's theory need not be inconsistent with feminist concerns.
(1) John Rawls. A Theory of Justice. (Cambridge, Massachusetts: The Belknap Press of Harvard University, 1971), p. 176. Hereafter denoted by TJ.
(2) John Rawls. Political Liberalism. (New York: Columbia University Press, 1993), pp. 38-39. Hereafter, denoted by PL.
(3) Baehr does think, however, that a Rawlsian position could be used to make the family minimally just by protecting against direct infringement upon of rights; e.g. helping battered women (Baehr 52).
(4) J. S. Russell, "Okin's Rawlsian Feminism? Justice in the Family and Another Liberalism" Social Theory and Practice, 21 (3), Fall 1995, pp. 409-10.
(5) ibid., p. 406.
(6) This includes women, skilled professionals, and persons with flat feet or other physical traits unsuitable for being a good soldier.
(7) Manifestations of disrespect or questioning of orders at an inappropriate moment could lead to punishment and possibly even imprisonment.
(8) Without an appeal to the draft in defense crises, national efforts to protect citizens would be severely hampered and general feelings of societal instability and insecurity would ensue.
(9) TJ 497
(10) PL 38-9
(11) TJ 456-7
(12) TJ 457. Emphasis added.
(13) TJ 456
(14) "(A) society regulated by a public sense of justice is inherently stable: other things being equal, the forces making for stability increase (up to some limit) as time passes"(TJ 498).
(15) TJ 454-5
(16) TJ 454
(17) PL 140-1.
(18) TJ 498-9
(19) Rawls claims that when evaluating the stability of a theory two questions arise: "the first is whether people who grow up under just institutions (as the political conception defines them) acquire a normally sufficient sense of justice so that they generally comply with those institutions. The second question is whether in view of the general facts that characterize a democracy's public political culture, and in particular the fact of reasonable pluralism, the political conception can be the focus of an overlapping consensus...(consisting of) reasonable comprehensive doctrines likely to persist and gain adherents over time within a just basic structure (as the political conception defines it)" (PL 141).
(20) TJ 454
(21) TJ 500-2
(22) PL 39
(23) Susan Moller Okin argues for precisely such a position. See Justice, Gender, and the Family (New York: Basic Books, 1989) and "Justice and Gender," Philosophy and Public Affairs 16 (1987), pp. 42-72.