A Defense of Okin s Feminist Critique of Multiculturalism and Group Rights Jonathan Kim Whitworth University

A Defense of Okin s Feminist Critique of Multiculturalism and Group Rights Jonathan Kim Whitworth University Two fundamental pillars of liberalism are autonomy and equality. The former means the freedom to make meaningful choices for oneself; the latter means the recognition of each person s equal dignity and opportunity. These two overarching ideals, however, appear to have led to tensions between two liberal movements, feminism and multiculturalism. While both aim at autonomy and equality, they have generated an apparent paradox when it comes to the issue of group rights. In Feminism and Multiculturalism: Some Tensions, Susan Moller Okin claims that group rights ought to yield. In this paper I will examine three objections to Okin before mounting a defense of Okin s position that the advancement of liberal goals requires rejecting group rights. The Multiculturalist Case for Group Rights Some multiculturalists claim that minority groups ought to be given Group Rights. Group Rights are special privileges that come in various forms, e.g. exemption from regular laws and the provision of special accommodations (Song 3), and may be granted to particular minority groups within a society. These rights are seen as necessary for the preservation of those groups, which is deemed desirable because it is conducive to their freedom to choose their own conception of the good life (4). Multiculturalist Will Kymlicka claims that this goal is supported by John Rawls's idea that life s primary goods must be accessible to individuals (Multicultural Citizenship 83). Group rights protect the goods of self-esteem and identity by offering a diverse variety of cultural structures, each of which represents a unique conception of the good life. For example, an intentional community might be given an exemption from having to send their children to a public school since their way of life prohibits exposure to certain teachings or even general contact with nonmembers. Because the group s isolation is an essential part of its culture, its preservation demands the special right of exemption from compulsory public schooling. Without these rights these individuals would be stripped of their ability to exercise their autonomy to choose and pursue their conception of the good life. Kymlicka states that the proper end of group rights is to empower members of minority groups to continue their distinctive practices if they wish to (Multicultural Citizenship 103). The good of autonomous choice warrants preservation of cultures, which Ephemeris 2014 43

in turn warrants group rights. A Defense of Okin s Feminist Critique of Multiculturalism and Group Rights Okin s Feminist Opposition For Okin, a problem arises when there are internal restrictions within the groups in question. According to Kymlicka, internal restrictions are practices within a cultural group that are illiberal in nature and used by members to oppress other members (Contemporary Political Philosophy 341). For example, suppose a group that has won exemption from public education is sexist and inculcates in their children a worldview which considers women naturally inferior? This would clearly go against the liberal principle of equality as the women in that group would not be treated as equals. It also undermines autonomy since the girls growing up in that group would never have the opportunity to learn anything beyond the idea that they are naturally subordinate and duty-bound to conform to discriminatory gender roles. How could they be considered to be making any meaningful choices over whether to abide by such a tradition if they are ignorant of alternative views and immersed in such all-encompassing influences? Kymlicka calls these groups closed cultures or groups (Liberalism, Community, and Culture 98). Okin argues that because of the violations of autonomy and equality perpetrated by closed groups, even if they are in the name of personal identity, she can see no justification, on liberal grounds, for this at all (675). While this consideration would disqualify closed groups for group rights, Okin goes further and says that even a group that is formally liberal can undermine autonomy and equality by illiberal practices in the private sphere. 1 She notes that within such groups, Female members are devalued and imbibe their sense of inferiority virtually from birth (675). Discrimination in the private sphere effectively imposes internal restrictions. So even if the young girls are allowed public schooling, if its cultural traditions constrain the positive liberty of members, e.g. through informal discrimination and domestic coercion, the group is effectively closed. Enforcement of formal liberal policies does not alleviate these kinds of discrimination which are often far less overt than their formal counterparts (679). And since virtually all groups have internal restrictions either formally or informally, Okin argues that all groups are de facto disqualified for group rights. Against Kymlicka s proposal to extend group rights to formally open (nonclosed) groups, Okin claims that virtually no culture in the world today could pass his no sex discrimination test if it were applied in the private sphere (679). Thus even extending rights only to 1 A group is formally liberal only if it adheres to public liberal policies, that is, it complies with regular laws in a liberal state. A group that rejected the regular law of compulsory public schooling is formally illiberal; this contrasts with being informal illiberal in the private sphere as opposed to the public sphere. Ephemeris 2014 44

groups that are formally open has the effect of perpetuating illiberal practices. She also claims that this is a feminist issue in particular because the groups in question are de facto patriarchal. Whenever liberal principles clash with claims about cultural rights it almost always has to do with gender discrimination, and thus the issue is likely to have much more impact on the lives of women and girls than on those of men and boys (667). She suggests that for liberalism a better solution than group rights would be to allow such groups to assimilate naturally or even go extinct without the support of such rights (684). Three Objections to Okin One objection is that Okin's prioritization of individual rights seems to overlook the importance of cultural groups to the ultimate detriment of individual rights themselves. Ideally, it s desirable for everyone to enjoy their rights as much as possible but the best option may be the lesser evil. One might dispute Okin s claim that the liberal value of autonomy is best preserved by altogether denying group rights. If the denial of group rights would lead to the extinction of these groups, preserving these groups might justify their internal restrictions as harms necessary for maximizing overall autonomy. Then the two options are state where such groups have gone extinct or a state with internally restrictive groups. While Okin thinks that the former is better, one might argue that the latter is actually more conducive to autonomy: in a homogenous society without minority groups, there is no culture but the majority culture so individuals growing up in such a state would have no real choice but to identify with the majority culture. In order to make meaningful choices and thus have real autonomy, however, we need a context of choices the ability to consider, choose among, and pursue different cultural options (Song 9). As Kymlicka says, Freedom involves making choices amongst various options, and our societal culture not only provides these options, but also makes them meaningful to us (Multicultural Citizenship 83). Without cultural groups and the opportunity to partake in them we are, according to Jeff Spinner-Halev, adrift in this world (91). Thus multiculturalists like Ayelet Shachar claim that since both groups and individual rights are legitimate ends, it s wrong to just pick the one extreme of denying group rights altogether (217). 2 A second objection comes from Spinner-Halev who claims in what is known as his Oppressed History Argument that a group's history of oppression can qualify it for group rights. Oppressed groups are minority groups where the members' individual rights have been violated by the state (86). He claims 2 Shachar suggests that we instead pursue a joint governance model which purportedly achieves the correct balance by allowing only some group rights while withholding others, e.g. allowing divorce laws to be under group jurisdiction while leaving inheritance laws to state jurisdiction (221). Ephemeris 2014 45

that when such a group has internal restrictions that conflict with liberal policies, denial of group rights constitutes imposing a sort of reform (94). While a state may impose reform on some minority groups and deny them group rights, a history of oppression exempts oppressed groups from state-imposed reform. Because they deserve group rights, Bitter opposition of tribal groups to cooperating with the former oppressor when it comes to reform is understandable and justified (94). Spinner-Halev gives two arguments for extending group rights to oppressed groups, an argument from justice and a consequentialist argument. According to the first, because the group had previously been oppressed by the state, the state cannot now justifiably impose reform on the group as this assumes that the state is benevolent and that such reforms would be beneficial to the group members. But this presumption is made implausible by the fact that the same agent had oppressed that group in the past. He claims that, even if we are acting with good intentions, To say that today we are now confident that the US will treat indigenous peoples with the respect they deserve is to ignore how the state actually acts (94). Spinner-Halev considers the example of the history of Native American tribes. How can the U.S. government assume the authority to impose its laws on them against the background of the terrible oppression it had dealt them? These tribes, Spinner-Halev maintains, have legitimate claims to the group rights such as self-governance, that is, legal jurisdiction separate from the state's. Spinner-Halev s argument from consequences states that imposing liberal reform will ultimately render individual rights of group members less secure. He appeals to historical examples where interference with such groups often led to violent rebellion against the state and despondency for members of the group (95). Because these groups are oppressed, their past oppressor's interference will cause them to suffer alienation and to feel powerless, leading to problems such as low educational achievement, violence and high suicide rates (95). It s hard to see how liberal goals are being achieved in such a ruined environment. Thus denial of group rights to oppressed groups is unjust in the first place and ultimately counterproductive. The third objection attacks the relevance of Okin s argument to multiculturalism, focusing on her appeal to discrimination in the private sphere. This argument disputes Okin s claim that group rights produces tension between multiculturalism and feminism. Instead Okin seems to merely be critiquing the public-private dichotomy instead of multiculturalism itself. Okin claims that the groups in question practice private discrimination but private discrimination isn t the exclusive preserve of minority groups, and the private sphere is generally left outside the scope of public policy whatever the group, whether minority and majority. Spinner-Halev points out that Multicultural theorists do not simply allow Ephemeris 2014 46

immigrant groups to discriminate against their daughters. Rather, with a standard liberal view of the private sphere, Kymlicka and others allow all families [...] to do the same (89). Whether the private sphere should subject to public justice, whether we should maintain a public-private dichotomy, is an issue within liberalism in general and doesn t reveal an incompatibility between feminist goals and multiculturalist goals specifically. Indeed, if Okin is right and the area of private injustice should be subject to public policy, then we would have to enforce liberal principles within all families, after which the question of group rights may still remain. 3 So the objection is that Okin s claim that multiculturalism conflicts with feminism misses the point that this is a problem for liberalism in general. Responses to the Objections The first objection that group rights are the lesser evil may seem plausible initially. After all, if both a context of choice and individual rights are conducive to exercising the liberal principle of autonomy but are in conflict, choosing a balance between the two may be better than choosing one extreme or the other. This argument, however, incorrectly assumes that we must settle for a balance between these two goods and that the full pursuit of both isn t possible. We don t have to sacrifice the context of choice as a whole in order to protect individual rights. We must reject the assumption that without group rights society will somehow eventually turn into one boring homogeneous blob. After all we can still foster a diversity of cultures by providing cultural materials instead of by privileging cultural structures. Cultural materials are resources that allow people to learn about cultures and live them collectively (Waldron 110). For example, we provide cultural material by giving non-english language courses in public schools, allowing cultural groups use of public facilities and areas, and by providing freedoms of expression and religion where they don t conflict with basic liberal principles. All of these are achievable and for the most part are achieved in the U.S. without resorting to group rights. Currentlyexisting cultural structures aren t ultimately valuable especially if they conflict with liberal values. It is cultural materials that are the neutral building-blocks of cultural diversity. The provision of these materials would allow new cultures to emerge and existing minority cultures to sustain themselves (as long as they don t conflict with liberal values). If a culture's internal restrictions conflict with normal liberal laws, it would have to reform and adapt. Thus the community would have to affirm the 3 A state could subject the private sphere to public justice while still upholding group rights. Equally, a state could do the same while rejecting group rights. The question of group rights is a question whether we should give special exemptions and privileges, whether only in the public sphere or also in the private sphere. Ephemeris 2014 47

fundamental liberal principle of autonomy, for instance by providing public education to their children. Indeed, allowing groups to resist reform may actually subvert the goal of protecting a genuine context of choice as it runs the risk of privileging one allegedly pure version of that culture, thereby crippling its ability to adapt to changes in circumstances (Song 9). Thus a context of choice is protected without group rights and is even best protected thereby. The worry concerning the context of choice may still remain, however, if the exemption from public schooling is essential to the survival of a group. Many of the defenses of culture employed in criminal law courtrooms for cases involving such practices as polygamy and arranged marriages appeal to this claim. (Song 14). I argue that in such cases liberalism should reject group rights and leave the group either to radically reform or to use Okin s words go extinct. At the price of making illiberal groups face this conflict we uphold individual autonomy without losing the context of choice. Indeed, the majority culture which sets the general standard of liberal conventions is itself comprised of numerous subcultures that make it diverse. The American South has different cultures from the West, the West has different cultures from the East and so on, while all of them are uniformly subject to federal law. Also, reform doesn t seem to be much of a detriment to diversity as it appears that many immigrant families in the U.S. still retain their cultural distinctiveness even after some degree of assimilation, thus avoiding extinction despite reform. Furthermore, if we are to make exemptions from the law for every individual claiming the cultural defense, we would effectively be endorsing a relativism where the legality of an action is contingent on an individual s values; to take an extreme case, a child-abuser could enjoy impunity as long as the abuse is claimed to be essential to cultural identity. What principle disqualifies this as part of a unique conception of the good life while permitting forced marriage? Ultimately, when we can afford both individual rights and a context of choice, we ought to prefer them over group rights. My response to the second objection, Spinner-Halev s history of oppression argument, is twofold. For the first part, Spinner-Halev misses the point when he claims that it is unjust for a state to impose reform on a group which it had previously oppressed. If oppressed groups (or rather previously oppressed groups) have a claim of damage against the state, then this becomes a matter of compensatory justice, not multiculturalism. It would indeed be unfair for the U.S. to impose its laws on Native American tribes which have been terribly oppressed in the past, without also providing due compensation just as it would be unfair for a state to order a falsely accused citizen to serve a prison sentence when it is obvious that the accused has been framed by the government. Here, the unlucky citizen is clearly justified in refusing to serve the prison sentence. In both cases, an injustice against the oppressed has been perpetrated, therefore Ephemeris 2014 48

the oppressed has no obligation to comply with the system of justice when the perpetrators themselves control the system. However, if the injustice is remedied, for instance, the tribes are compensated and the falsely accused is acquitted, then no legitimate claim against legal compliance can be made. As such the question whether Spinner-Halev s oppressed groups have a claim to exemption from the law is a matter compensatory justice. And even if such a claim applies, it wouldn t be a matter of group rights so much as a matter of a right to resist injustice. If a wrongfully imprisoned man were later exonerated and given compensation, there would be no ground on which he can claim impunity from the state s laws because of the state s past oppression of him. Thus Spinner-Halev s argument about justice for oppressed groups is irrelevant to the issue of group rights and fails to undermine Okin s position. The second part of Spinner-Halev s history of oppression argument, the argument from consequences, fares no better than the first. Aside from the seeming exaggeration in his claim that imposing reform would lead to results that are clear, well known, and absolutely disastrous (95), his reasoning about the historical evidence is flawed. Taking the example of forced assimilation of Native American culture, he claims that high suicide rates, low educational achievement and other signs of societal ruin are to-be-expected outcomes of imposing liberal reform on any oppressed group. This example, however, does not support group rights. Forced assimilation in the name of reforms was itself an act of oppression and was not consistent with liberal principles. Considering the nature of these reforms, it s no wonder these Native American tribes suffered. Denial of group rights is a fundamentally different kind of reform. Enforcing laws of nondiscrimination can hardly be compared with the U.S. s past oppressive actions against Native American tribes. Furthermore, Spinner-Halev maintains that since the U.S. government claimed good intentions in the past all the while oppressing Native Americans, we cannot say that today we are now confident that the US will treat indigenous peoples with the respect they deserve (Spinner-Halev 94). This line of argument leads to the unacceptable implication of an extreme moral skepticism as it would be an admission that if we ve been wrong in the past we can never presume to be right again. Finally, according to the third objection Okin s critique of multiculturalism and group rights is really a critique of liberalism in general, since under traditional liberalism the private sphere is protected from public encroachment not only for minority groups but for all groups. Okin herself admits that virtually no culture in the world today, whether minority or majority is free of private discrimination (679). There is, however, a case to be made for Okin s claim that there s a conflict specifically between multicultural goals and feminist goals. Ephemeris 2014 49

As mentioned earlier, traditional liberalism is the basis for both feminism and multiculturalism but the multiculturalism of group rights pulls it to one side while Okin s feminism pulls it to the opposing side: if minority cultures are granted group rights that preserve their illiberal practices, feminists would see a loss of ground for their principal value of equality for women. As Okin says, group rights invariably preserve a more patriarchal minority culture in the context of a less patriarchal majority culture (680). The choice between granting and denying group rights is a choice between reinforcing and not reinforcing private discrimination against women because the majority culture is the most liberal one. Thus, if group rights prevent less liberal cultures from integrating more liberal principles, the result is greater discrimination against women. It s granted that minority cultures aren t the only groups that have elaborate patterns of socialization, rituals, matrimonial customs, and other cultural practices aimed at bringing women's sexuality and reproductive capabilities under men's control, which make it virtually impossible for women to choose to live independently of men, to be celibate or lesbian, or to decide not to have children (Song 23). The key point, however, is that they lean further toward these practices which liberalism aims to mitigate as much as possible. Thus for feminists the question of group rights is de facto a question of more, or less, private discrimination on the whole, specifically against women. The feminist sees the best choice for the individual rights of women clearly lies with a majority culture which is the most liberal alternative, while group rights lean toward sanctioning more private injustice. This is what justifies Okin s claim that there is a unique tension specifically between feminism and multiculturalism, and that it is not merely a general problem within liberalism. Conclusion Okin s critique of multiculturalism illuminates the difficulties posed by group rights and tensions within liberalism's ideals of autonomy and equality. Ultimately, the solution which best upholds individual rights rejects group rights. Furthermore, group rights are a real threat to the liberal interests of women. However, we cannot overlook the special contribution that cultural groups make to the goal of enabling individuals to choose their own conceptions of the good life. We must explore ways to provide cultural materials that sustain an adequate context of choice, how best to facilitate reform in the culture of oppressed groups and the ultimate question how best to advance the liberal rights of individuals. Ephemeris 2014 50

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