What’s wrong with rights?

Most of the gains that women have made over the last decades have come about when women have taken a share of positions and opportunities hitherto reserved, by law or by custom, for men. And it is when this happens that we tend to get the most immediate and vivid sense that things have changed for both women and men. (The visibility of women in the US Army produces this sense in me, a Briton living in the US: it makes the British Army now seem peculiar.) These gains for women have generally been won in the name of justice and of rights. It is unjust, it is claimed, for women who are equally qualified to be excluded from a position which men hold, merely because they are women; it violates their rights. Simple and perennial as this argument is, we have yet to find a better.

The United States is probably the country in which women have to the widest extent claimed jobs in spheres hitherto reserved for men. This has happened as a result of struggles, within the American political and legal context, to claim rights and just treatment. So it is, at least at first sight, surprising that very few American feminists have been enthusiastic about rights and justice. In fact, many feminist theorists have violently attacked the whole idea.

What is wrong with rights? The orthodox objection is that the notion of rights is based on an idea of equal competence or ability, or at least on equality in some way in which gender can be regarded as indifferent. But this, the claim goes, abstracts artificially from the actual lived context of people’s lives, in which gender always dominates a person’s experience and determines his or her mode of thinking, especially in moral and practical matters. To think of gender as indifferent is, in the weaker versions of the objection, to ignore, especially in the case of women, the gender-specific aspects of experience as though they did not matter, and to move to a perspective from which aspects of women’s lives are not given value.

In the stronger versions of the objection the rights perspective is seen as being itself just a projection of a specifically male view of looking at the world, in which individuals are seen as being essentially discrete atoms, and the essentially important relationships are those of contract and competition between these ‘atomised’ individuals. From this perspective, what matters to individuals is autonomy and respect for rights. But, the objection goes, what matters to women is not this, but relationships of caring, nurturing and mutual dependence which hold between particular individuals in ways that have nothing to do with rights; to insist on the rights perspective is to give a privileged position to combative attitudes of demanding and enforcing rights which devalue the sensitive attention to individuals that caring relationships encourage.

Some feminists extol the virtues of community, and there are Marxist variations on this theme. Others argue that to generalise about women at all is to be dominated by the same kind of abstract rationalism characteristic of male thought: not having shared it, white women cannot discuss or criticise the experience of women of another race, and so on. Deconstruction and literary theory have also been influential. But running through the different versions of feminist theory like a structural girder is a firm rejection of the society’s prevailing political and legal language: the language of rights and justice.

One very unfortunate result of this has been that feminist theory has been cut off from the mainstream of political and social philosophy. For in this mainstream, rights and justice have continued to be the subject of increasingly complex discussion. But if one accepts the orthodox feminist objection, there is nothing much to discuss. Feminists sometimes put Rawls’s A Theory of Justice in their bibliographies but show no other signs of having read it, and it is not hard to see why: it must be difficult to work up the intellectual energy to think through Rawls’s project, not to mention the vast literature it has produced, if you already think that talk of justice is all a male scam anyway.

On the other side, philosophers who would like to contribute to feminist theory find themselves repelled by the prevailing rejection of procedures like argument and justification which define philosophical activity. This is particularly true of women philosophy graduate students. One such student known to me, who had taught a summer course on philosophy and feminism, sent her syllabus to the Women’s Studies Committee for their comments. They rubbished it as ‘too philosophical’: it could not count as feminist, they said, because it used, rather than criticising and rejecting, the procedures of philosophy. She turned to doing rational choice theory.

There seems nothing intellectually compelling about this development, and it obviously is related to the way in which feminism has developed most strongly in literature and history departments, where the currently fashionable theories could hardly be more different from what goes on in the philosophy and political science departments. Feminism without Illusions is a series of discussions of different aspects of current feminist theory, written by an author distinguished in her own area, 19th-century history of the American South. Fox-Genovese takes us, on a variety of issues, through the various options of current feminism, and is visibly struggling with its legacy.

The official overall target of the book is ‘individualism’. This is defined as ‘the systematic theory of politics, society, economics and epistemology that emerged following the Renaissance, that was consolidated in the great English [sic], American, French and Haitian revolutions of the 17th and 18th centuries, and that has found its purest logical outcome in the laissez-faire doctrines of Neoclassical economics and libertarian political theory’. With a target as broad as this, it is not surprising that different parts of the book have rather distinct aims and not much to do with one another. The second part is mostly concerned with applications of feminist ways of thinking in history and general education courses, and Fox-Gensovese has fairly moderate things to say about feminist history and the ‘canon’ in ‘Western Civilisation’ courses. She rejects extremist attacks on the very notion of a common culture, or achieving objectivity about the past. That these positions need to be stated, with some apology, is an indication of just how relativist and subjectivist are the fashionable feminist theories in this area. In an intellectual world where every report of experience is as valuable as any other, it is not surprising that discussion of the intellectual issues often turns into a report on the academic politics of the American Historical Association.

More interesting, however, is the first part of the book, where what she is mainly discussing is in fact rights. Officially, the book ‘explores ways of imagining the claims of society – the collectivity – as prior to the rights of the individual’. However, this is not what we actually find, and the reader is at first puzzled. We find forceful criticisms of the romantic assumptions behind the language of ‘sisterhood’, and a vivid awareness of the reactionary potential of the appeal to community. Fox-Genovese sees clearly the fatal likeness between communitarian appeals to women’s roles as nurturers and carers and the bad old views which women have had to fight to make any progress – views that women have a natural place, solidified for them by tradition, and that there is something perverse about any attempt on their part to transcend this.

Fox-Genovese also seems uncomfortable with the unsubtlety of the orthodox objection to rights. She is aware that one can hardly discuss issues like abortion and pornography without making a role for rights. These are, of course, issues where one can scarcely ignore the prevailing political language. And she is aware of the uncomfortable position that some feminists get into who accept rights in some areas – for example, thinking that a woman has a right to abortion, on the grounds that it is solely her affair – but who also think that society ought to intervene to stop marital rape, or to alter a company’s hiring practices.

In the actual discussions, Fox-Genovese is prepared to think that individuals do have rights, and they matter. However, she adds they must be ‘derived from society’ rather than from the ‘innate nature’ of individuals. There are a number of things that could be meant by this. One is that rights, or at least the rights that matter, are ‘group rights’; one has rights qua member of a group, and it is groups that should be thought of as the proper right-holders. Another possibility is that it is individuals who have rights, and hold those rights as individuals and not as members of a group, but nonetheless the rights are to be justified in terms of groups which individuals belong to. These positions are very different, for, if I have rights as a member of a group, it will be the group, or in practical terms its representatives, which have the standing to demand, protect, and so on, those rights. If it is individuals who are right-holders, then as an individual I will have the standing to demand my rights – even if the rights I care about belong to me as a member of a group (ethnic, racial, religious and so on).

More important than this distinction, however, is the point that despite the variety of her formulations it is fairly clear that Fox-Genovese is working towards a conclusion which has been debated in the philosophical literature for some time: namely, that one should distinguish the political role of rights from the question of their justification. It is perfectly consistent to reject, as Fox-Genovese repeatedly does, the idea that people have rights because they are all equal in some abstract or metaphysical way (we are all children of God, we all have the same rational nature), but to maintain that rights are important as a framework regulating the distribution of power.

This is important, for once this distinction is made, it becomes clear that rights are not in competition with values like caring and nurturing. The orthodox feminist objection assumes that the perspective from which one demands and protects rights is competing for practical space with attitudes of caring and sensitive concern. But this depends on conflating the political role that rights have with the theories of nature or individualism which have at times been used to support rights. Suppose one has no time for the perspective of abstract equality, and wants to foster a society in which caring and nurturing relationships, and the values these promote, are encouraged and protected. Even without the assumption that these are primarily to be located in women’s experience, one might have this as one’s aim. The best political framework in which these values can be defended may well be one of rights and justice. It certainly seems more promising than traditional forms of imposed community. Indeed, Fox-Genovese is uncomfortably aware of the fact that it is the much-belaboured Western tradition of rights which has produced and furthered women’s ‘empowerment’ (to use a fashionable term) where traditional forms of community have by and large simply suppressed it. In any case, whether this is so or not, the suitability of rights as a political framework does not depend on taking any particular attitude to the question of abstract equality. That is one reason why rights are useful as a political framework in societies where different groups differ too much on basic questions of value to reach any uncontroversial consensus about the justification for equal treatment.

It this book is any indication, some feminist theorists are ripe for rejoining the mainstream tradition of political thought. (The final chapter even defends justice as the articulation of abstract standards.) Whether they will, probably depends on the persistence or not among feminists of hostile attitudes to rights and justice, and to philosophical modes of discussing them. Certainly feminist discussions of pornography, abortion and affirmative action would gain a great deal from the last decade’s philosophical work on these subjects.

In one respect, the book is very parochial. It assumes throughout that ‘feminism’ means ‘feminism in the United States’, and it uses ‘Western’ to refer to the United States, contrasting this solely with the Third World and ignoring or suppressing modern Europe. This parochialism weakens the book in two ways. It makes the most striking contrast to the frequently repeated rehearsal of the ways in which part of a culture has illegitimately claimed to speak for the whole. The force of this constant complaint against male, white and European perspectives is somewhat lessened when one observes the confidence with which a very inward-looking American perspective is assumed to hold for modern Europe. Further, the book tries to divine the future of feminism in the entrails of the current US economic situation, whereas it is surely more reasonable to look elsewhere for fresh theoretical and practical developments, especially to Eastern Europe, where women are seeking to redefine their roles and belatedly discover explicit forms of feminism amidst the breakdown of some versions of community and the re-emergence of older forms. Whether these women cast their claims in the language of justice and rights remains to be seen.