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Does justice as
fairness imply the abolition the family?
Justice as fairness has had a profound effect on
political theory. This essay seeks to establish whether justice as fairness
implies the abolition of the family or whether justice as fairness implies the
more modest action of reform. The essay begins with an explanation of the key
concepts such as the ‘basic structure’ and the ‘veil of ignorance’ in Justice
As Fairness: A Restatement by John Rawls. The ideas of Susan Moller Okin
and Veronique Munoz-Dardée will be discussed in order to go beyond Rawls’s
limited writings on the topic in order to consider more fully how his principles
of justice interact with the institution of the family. For this topic I will
attempt to separate the normative elements from the empirical elements while
acknowledging that one’s perspective on the empirical elements of the
institution of the family may influence their perspective of what justice as
fairness requires for the institution in a normative sense.
Rawls uses a device called the ‘veil of ignorance’
through which he suggests that risk-averse and rational participants would
choose the following two principles of justice to apply to the basic structure.
The two principles of justice are as follows
a)
‘Each person has
the same indefensible claim to a fully adequate scheme of equal basic
liberties, which scheme is compatible with the same scheme of liberties for
all; and
b)
Social and
economic inequalities are to satisfy two conditions: first, they are to be
attached to offices and positions open to all under conditions of fair equality
of opportunity and second, they are to be to the greatest benefit of the
least-advantaged members of society (the difference principle).’[1]
The basic structure, which Rawls seeks to apply
these principles of justice to, ‘is the way in which the main political and
social institutions of society fit together into one system of social
cooperation, and the way they assign basic rights and duties and regulate the
division of advantages that arises from social cooperation over time.’ The
basic structure consists of ‘the political constitution with an independent
judiciary, the legally recognised forms of property, and the structure of the
economy (for example, as a system of competitive markets with private property
in the means of production), as well as the family in some form.’ [2]
Rawls includes the family in the basic structure
because ‘one of its essential roles is to establish the orderly production and
reproduction of society and of its culture from one generation to the next.’[3] Rawls suggests
that ‘no particular form of the family (monogamous, heterosexual, or otherwise)
is so far required by a political conception of justice so long as it is
arranged to fulfil these tasks effectively and does not run afoul of other
political values.’[4] However, Rawls,
somewhat ambiguously limits the scope that the principles of justice have in
their affect upon the family by suggesting that ‘political principles do not
apply directly to its [the family’s] internal life but they do impose essential
constraints on the family as an institution and guarantee the basic rights and
liberties and fair opportunities for all its members.’[5]
One may question how the substance of this formal
equality can arise without directly affecting the internal life of the
institution. If the family, in its current and historical modes is perceived to
be moderately unjust and in need of minor reform, Rawls’s approach would seem
reasonable and remain consistent with values of liberty. Whereas, if the
family, in its current and historical modes is perceived to be severely unjust
and in need of major reform or abolition, then one would be more sympathetic to
an approach where the family is directly the subject matter of the principles
of justice.
In Justice, Gender, and the Family, Okin
provides a generally constructive critique of Rawls’s Justice As Fairness from
a feminist perspective. In her response to Justice As Fairness and
Rawls’s other works she suggests that Rawls uses sexist language and largely
ignores historical injustices directed towards women and their subjugation
within the family. This has led Okin to feel obliged to ask, ‘does this theory
of justice apply to women?’[6] Okin’s drawn
out critique of Rawls’s sexist language, while accurate and somewhat relevant, is
on the weaker side of her criticism. The strongest challenge that she presents
to Rawls is questioning what grounding he has to omit the institution of the
family from the direct impact of the principles of justice as they apply to the
rest of the basic structure.
Rawls suggests that the principles of justice apply
to broader political and economic institutions rather than to the internal life
of private groups and associations such as ‘firms and labour unions, churches, universities,
and the family.’[7] He uses the
example of a church being able to excommunicate heretics but not being allowed
to burn them. This, according to Rawls, is compatible with justice as fairness.
Although Rawls may not personally believe such an action is justified, he is
seeking to establish a system of political justice rather than a moral
framework such as utilitarianism which is significantly more comprehensive in
its scope. In the same way, Rawls sees the institution of the family as ‘bound
by the constraints arising from the principles of justice’, but only
‘indirectly from just background institutions within which associations and
groups exist, and by which the conduct of their members is restricted.’[8] He points out
that women and men ‘are equal citizens and have equal basic rights,’ and goes
on to state that ‘to establish equality between men and women in sharing the work
of society, in preserving its culture and in reproducing itself over time,
special provisions are needed in family law (and no doubt elsewhere) so that
the burden of bearing, raising, and educating children does not fall more
heavily on women, thereby undermining their fair equality of opportunity.’[9]
Rawls explicitly argues for reform as opposed to
more radical change such as abolition in securing justice for all peoples
including those who form part of a family institution. While Okin does not
directly call for the abolition of the family in Justice, Gender, And The
Family, she does believe that ‘a consistent and wholehearted application of
Rawls’s liberal principles of justice can lead us to challenge fundamentally
the gender system of our society.’[10] It is apparent
that this is not the purpose of justice as fairness as intended by Rawls.
However, if Okin is right in suggesting that Rawl’s principles of justice would
‘fundamentally change the gender system of our society’, then these same
principles would ultimately impact on the family which is an institution which
has historically been largely shaped through the gender system.
Another important analysis of what Rawls’s theory
means for the institution of the family is presented by Munoz-Dardé in Is
the Family to Be Abolished Then?. She makes several empirical claims as
background to her argument. The article begins with the assertion that ‘the
family is one of the main causes of morally arbitrary inequality. Moreover, it
is not inequality which makes everyone better off.’[11] This empirical
claim is directly appealing to Rawls’s ‘difference principle’ which was
explained earlier. The same claim could also be made about private property. It
seems likely that private property also does not satisfy the difference
principle in being of the ‘greatest benefit of the least advantaged members of
society.’[12]
In the same way, the author suggests that the difference principle should lead
us to question whether the family is to the greatest benefit of its lest
well-off members. To satisfy the ‘difference principle’ in this case, one may
need to consider whether the institution of the family benefits women and
children, or at least, whether the inequalities created by the institution are
to their maximum benefit. Such a broad empirical assertion cannot be made here,
but it will suffice to say that there are conceivable instances of the family
working to either the advantage or the disadvantage of its least well-off
members.
Munoz-Dardé views child rearing by elders within a
community as an essential function of the family and she describes the family
by this function. Understanding that children must still be cared for if the
family were to be abolished, she contrasts the institution of the family with a
well-run orphanage. In Marriage and Morals, Russel suggests the state
substitution of the family would come with both positive and negative
consequences. He argues that health and education have improved due to state
intervention in Western nations. However, he also point to ‘grave dangers’ in
trusting the state in the role of ‘parenting’ children. The main issue of
concern for Russell is that the state is likely to treat children as a means
rather than an ends, whereas, due to individual bonds between parents and their
children, parents are more likely to treat their children as an ends in
themselves. After referring to Russell’s argument, Munoz-Dardé concedes that
the abolition of the family in favour of a well run orphanage ‘would probably
pose such extreme threats to individual liberty and capacity for
self-determination, that it would defeat the very purpose that made us envisage
its substitution by a well-run orphanage.’[13]
Munoz-Dardé does suggest that state marriage should
be abolished because it ‘creates inequalities which are not beneficial to the
worst-off.’[14] However, she
does not see any need to intervene upon the institution as a ritual or
religious ceremony. Allowing the institution of marriage to continue yet
abolishing state recognition of marriage does not abolish the institution
itself. Therefore, the steps that Munoz-Dardé is proposing to take in regards
to both the family and marriage are closer to reform than abolition. While
either reform or abolition could be invoked to achieve justice in the
institution of the family, a Rawlsian political approach, both through
explication and implication, would suggest that reform would be the preferred
option.[15]
Rawls does not provide a strong and comprehensive
defence of the family in Justice As Fairness: A Restatement. Indeed
Rawls does not intend his political theory to be comprehensive and to
explicitly intrude upon the domains of the private sphere or the moral sphere
so long as his egalitarian political conception of the good can still be met.
However, several authors, such as Okin have noted similar sentiments as this:
‘the critical force of the original position becomes evident when one considers
that some of the most creative critiques of Rawls’s theory have resulted from
more radical or broad interpretations of the original position than his own.’[16] The Rawlsian
method has proved useful for both Okin and Munoz-Dardé in highlighting the
failures of the institution of the family. However, given the unattractiveness
of the alternative possibilities and their associated threats to liberty, I
will conclude by suggesting that justice as fairness does not imply the
abolition of the family but significant reform.
[1]
Rawls and
Kelly, Justice as fairness, 42–43.
[2]
Ibid., 10.
[3]
Ibid., 162.
[4]
Ibid., 163.
[5]
Ibid., 164.
[6]
Susan
Moller Okin, Justice, gender, and the family, 91.
[7]
Rawls and
Kelly, Justice as fairness, 10.
[8]
Ibid.
[9]
Ibid., 11.
[10]
Susan
Moller Okin, Justice, gender, and the family, 89.
[11]
Munoz-Dardée,
“Is the Family to Be Abolished Then?,” 37.
[12]
Rawls and
Kelly, Justice as fairness, 42–43.
[13]
Munoz-Dardée,
“Is the Family to Be Abolished Then?,” 216.
[14]
Ibid., 54.
[15]
Rawls and
Freeman, Collected papers, 600. Such an approach is discussed in
Collected Papers in direct response to authors such as Okin.
[16]
Susan
Moller Okin, Justice, gender, and the family, 101; see also: Okin,
“Political Liberalism, Justice, and Gender,” 42.
Munoz-Darde, Veronique.
“Is the Family to Be Abolished Then?” Proceedings of the Aristotelian
Society 99, no. 1 (1999): 37–56.
Okin, Susan Moller.
“Political Liberalism, Justice, and Gender.” Ethics 105, no. 1 (1994):
23–43.
Rawls, John, and Samuel
Richard Freeman. Collected papers. Cambridge, Mass.: Harvard University
Press, 1999.
Rawls, John, and Erin
Kelly. Justice as fairness : a restatement. Cambridge, Mass [u.a.]:
Harvard Univ. Press, 2003.
Susan Moller Okin. Justice,
gender, and the family. New York: Basic Books, 1989.
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