Woman Behind the Blindfold: Toward a Feminist Reconstruction of Rawls’ Theory of Justice, The
Introduction
This Note examines John Rawls’ theory of justice through a self-proclaimed feminist view to determine its applicability to a sex-egalitarian society. In A Theory of Justice, Rawls brilliantly elaborates a novel form of contractarian theory based on justice as fairness. However, Rawls’ theory fails to encompass the inequalities and complexities of male/female relationships. Rawls posits that social and political institutions should be built on justice, but explicitly exempts private associations such as the family unit from the application of justice as fairness. Rawls assumes that his theory of justice applies to all social unions. However, under this assumption, Rawls bypasses an analysis of the dichotomy between the social contract – the most fundamental concept in Western libertarian philosophy – and the sexual contract, the private agreement between a man and a woman governed by the state under the laws of matrimony.
The social contract, through which individual women and men voluntarily enter a covenant with the state in exchange for an expansive protection of personal freedom, is the foundation of Western civilization. The sexual contract between a man and a woman, on the other hand, is the foundation of sexual hierarchy and female subjugation. While remaining outside the social contractarian realm, the sexual contract nevertheless serves the social contract by maintaining the social system within the natural order. For example, Rawls refers to fathers as “heads of families” when discussing “persons” in social situations. Since he assumes that the principles of justice will eventually guide social unions under the sexual contract, Rawls does not address female subjugation within the family.
This Note thus addresses Rawls’ failure to deal with sexism in the private relationships between men and women as an inherent feature of Western his- tory, and explains how that neglect undermines the hypothesis ofjustice. Part I recapitulates the basic principles of Rawls’ theory ofjustice as they apply to a constitutional democracy of the most equitable order. However, establishing criteria for principles ofjustice in the public sphere is insufficient. An exami- nation of Rousseau, Rawls’ contractarian forefather, highlights the problem- atic nature of Rawls’ theory as it pertains to women. One must address the private inequalities between the sexes by examining the sexual contract.
Part II begins by discussing the origins and manifestations of misogyny inWestern history. I then examine the problem of difference as constituted by modem feminist analyses, questioning the ways in which this debate fails to capture the diverse essences of women’s lives. This analysis leads to a discus- sion of the necessity of understanding the intersections among gender, race, and class. Through establishing the importance of context in women’s lives, I emphasize the common need of women to be treated as integral persons.
The last Part of this Note returns to Rawls, discussing, first, feminist cri- tiques of his contractarian theory. While Rawls wrongly excludes the sexual contract from the scrutiny of justice, his general principles may nevertheless be broadened to reach the private relations and institutions that serve to con- fine women. With recognition of women’s diverse essences, Rawls’ theory may be reconstructed to achieve an egalitarian, moral society based upon what I label the integral independence of women.
Suggested Reading
Revenge Porn Legislation Activists and the Lessons from Sexual Harassment Jurisprudence: Gender Neutrality, Public Perceptions, and Implications
Amy Lai ∞ I. Revenge Porn Gender‑Neutral Legislation and Gender‑Focused Advocacies II. What Anti‑Revenge Porn Activists Can Learn from Gender Neutrality and Sexual Harassment Jurisprudence III. Gender‑Neutral Advocacies and Their Potentials IV. Conclusion To date, twenty‑six states have laws that expressly
Civil Liberites, Sexuality and the Law
Review of Donald G. Casswell's Lesbians, Gay Men, and Canadian Law, praising the book as a first of its kind and thorughly researched
Democracy, Sex and the First Amendment
Evaluation of arguments addressing whether obscenity doctrine permitting censorship of hardcore pornography violates modern free speech jurisprudence.
Differentiating Sex from Sex: The Male Irresistible Impulse
The male sexual impulse is a means for courts to find that men and women are not similarly situated; application of this principle in different areas of the law.