Women: What Is Just?

Gender Justice, by David L. Kirp, Mark G. Yudof, and Marlene Strong Franks, Chicago: University of Chicago Press, 246 pages, $19.95

Can issues of gender and justice be discussed without a forced march to the ideological barricades? The happy evidence of this book is: yes. Authors David Kirp, Mark Yudof, and Marlene Strong Franks are keen observers of the theory-mongers but manage to elude capture by doctrinaire slogans of the left or the right. The result is a genuinely illuminating book that combines theoretical adroitness with intelligent discussion of policy alternatives.

Clear good sense rather than piercing novelty characterizes the treatment: there is little here that John Stuart Mill had not anticipated over a century ago. But Mill lived in a more somber age. Lesbian Nation had not declared independence and the Eagle Forum had not yet flown. Contemporary sexual-justice politics exhibits a variant of Gresham's Law: sensationalism drives out sensibility. One hopes, though, that Gender Justice will not be lost in the backwash.

Both radical feminists and conservatives—the authors prefer the term naturalists—find the outcroppings of sexual differentiation everywhere. The former interpret differentiation as oppression and call for revolution; the latter see it as rooted in biological determinism and seek to fix traditional sexual roles in legal cement. Each, however, professes to know what gender justice entails and is eager to grasp political levers to give effect to its vision. These sworn enemies are outcome-oriented. Theory provides a blueprint of the good society; if reality fails to match up, then it is ipso facto unjust. Dispute concerns only who it is that has bona fide credentials as philosopher-king or philosopher-queen.

An outcome-oriented conception of justice necessarily is insensitive to process. If all that matters is the destination, the route taken to it is irrelevant. In particular, if the uncoerced choices of men and women generate distributions not in accord with the favored pattern, then those choices cannot be allowed to stand. They will be impugned as manifestations of "false consciousness" or "moral decay." The sole and conclusive evidence that choice is defective is, of course, its clash with the blueprint. Outcome-oriented conceptions of justice differ widely amongst themselves, but they are alike in being inherently illiberal.

The authors of Gender Justice have no blueprint to peddle. For them, justice is not the realization of a master design but means instead "enhancing choice for individuals, securing fair processes rather than particular outcomes for the community." If individuals are free to act in accord with their own preferences, to vote with their feet and not only in polling booths, then justice is embodied in the process.

But will the outcomes that emerge from millions of discrete decisions approach optimality? The authors reject the question's presupposition: "The premise is not that individuals will choose well, by some objective criterion, for we do not know what 'well' means in this sense. Individuals will act in what they regard as their own best interests, and that seems justification enough."

There is a bit of rhetorical excess in the preceding sentence. For would-be sages, free action in accord with each individual's own lights is problematic. And it is a mistake to suggest that partisans of liberty must stand mute when confronted with the question of justification. Indeed, the authors' own argument belies the statement. They do not rest their case on a self-evident value of liberty but instead tie it to other values that we have reason to acknowledge. The quality of our choices matters—but so too does the making of choices. That is, we prize autonomy. The opportunity to set one's own direction rather than being subject to the will of even a benevolent other is what separates adult from child, free person from slave.

Legal restrictions historically imposed on women were not, the authors show, motivated by male antipathy to females (as radical feminists argue). In this respect, the frequently invoked analogy between sexual and racial discrimination breaks down. Rather, restricting the options of women was overwhelmingly advocated on paternalistic grounds. Women, the argument went, were too fragile and vulnerable to be confronted with the rigors of the public realm. But even if sexual regimentation was well-intentioned, it intrinsically denied to women (and, to a lesser but nonetheless real extent, to men) the dignity of self-determination. That things go well for people is important; but that people determine for themselves how things will go is also important.

A related point is that direction in accord with a blueprint is unresponsive to new information and opportunities. Whether imposed from the left or the right, it is rigidly conservative. Experiments in new patterns of life are ruled out. Alternatively, "concentrating on processes, rather than imposing some unknown and unknowable collective preference, allows society to evolve and enables individuals to continue to transform themselves. Unpredictability and self-transformation…are not just artifacts of our time but represent desirable human traits on which a policy of relying on individual volition can be grounded." The authors return to this Hayekian argument throughout Gender Justice. A minor blemish on the volume is that no acknowledgment of Friedrich Hayek appears in the text.

Possibly the authors are fearful of being seen as embracing libertarian themes too closely. They make haste to assure the reader that "a 'night watchman' state is not what justice entails." As this is accompanied by only the most perfunctory argument, one can only assume that it amounts to the flashing of "progressive" credentials. Similarly, they intone, "there is no reason to believe that freeing the individual from restraint is always preferable to providing an opportunity." True enough, but beside the point in response to the question of what the proper role of state activity should be.

This is not, then, exactly a clarion call to the banner of a thoroughly free society. Nonetheless, Gender Justice stands head and shoulders above most treatments in the area. Its discussion of the legal status of women, past and current, is remarkably informative and acute. The Supreme Court is shown as having been overwhelmed by the burgeoning pace of sexual litigation over the past two decades, unable to attain jurisprudential cogency or even consistency in its various rulings. The authors point the way to a more intelligent and more principled judicial stance.

Similarly, their critique of the doctrine of so-called comparable worth is elegant and incisive. They argue that there exists no feasible alternative to the market for providing a common metric by means of which wages can fairly and efficiently be set. "Comparable worth cannot be coherently implemented, for the comparisons it insists on cannot be made."

Most of Gender Justice consists of policy appraisal. Its recommendations are not definitive—no book could achieve that status—but they are informed by conscientious regard for personal autonomy. Their treatment of the AT&T affirmative action program illustrates both that men and women are made better off by the availability of heretofore precluded options but also that their free choices will upset studied allegiance to "goals" (a.k.a. "quotas"). The authors reject the call for federal provision of day-care facilities, arguing that parents are the ones properly situated to make decisions concerning the care of their children. They similarly reject court imposition of sex-neutral life insurance and pension premiums, favoring instead market determinations. Governmental action is, however, necessarily implicated in the setting of tax policy, but here too the authors advocate a tax code that does not discriminate between married and single persons, or for one-wage households over couples both of whom are fully employed.

There are wrinkles of Gender Justice that should have been better considered. However, I am unable to cavil much at authors who conclude, "Our distrust of intervention is premised on the belief that any preset outcome imposes a notion of the good life on individuals whom we presume are better able to choose for themselves." This scholarly yet eminently readable volume deserves a wide audience. But will it be heard amidst the cannonades from left and right?

Loren Lomasky is a professor of philosophy at the University of Minnesota in Duluth.