Journal of Applied Philosophy, Vol. I , No. I , I984 115

Sexual Justice and the Sceptical Feminist

BEVERLEY SHAW

ABSTRACT The article considers various arguments put forward, on the subject of ‘sexual justice’, by Janet Radclqfe Richards in her book, The Sceptical Feminist: a Philosophi- cal Enquiry. These arguments rest upon a version of ‘the difference principle’, and owe much to the exposition of this principle by John Rawls. It is argued that Rakliffe Richards fails to support her argument for sexual justice by reference to the difference principle. Indeed, it is argued that reliance by Radcliffe Richards upon this principle vitiates her advocacy of sexual justice. The article concludes by putting forward an obvious alternative to the difference principle; and with a suggestion as to why Radcliffe Richards fails to acknowledge the strength of this alternative.

In this article I consider various arguments, put forward in Janet Radcliffe Richard’s The Sceptical Feminist: a Philosophical Enquiry [ 11, on the subject of sexual justice. But first a word or two about the book as a whole. Radcliffe Richards does make an interesting and worthwhile attempt to present the feminist case (or her version of it) by argument. As she rightly points out, the case that women are treated unjustly (in societies whose social structures favour men rather than women) is often stated but rarely argued for. Indeed Radcliffe Richards might well have quoted in support of her general point of view a philosopher to whom she makes only a passing ironic reference (p. 117). The philosopher is Robert Nozick, and the quotation that she could have cited to buttress her general position is: “The legitimacy of altering social institutions to achieve greater equality of material condition is though often as- sumed, rarely argued for” [ Z ] . Instead, as Radcliffe Richards points out, the presentation of the facts of inequality is treated as a substitute for the argument that women are, in general, treated unjustly.

Janet Radcliffe Richards’ book is not solely concerned with this topic which she names ‘sexual justice’. There is much argument, contributing to debates between feminists, on such matters as: the appropriate form of dress for feminists; the rightness or wrongness of contraception and abortion viewed from a feminist perspective; the degree to which state aid should be sought for in setting up children’s nurseries. In these parts of her book, Radcliffe Richards is exploring issues which are more or less a matter for feminists as a self-conscious group within society. However, her discussion of sexual justice is addressed to a more general public; although deciding upon the best arguments to employ in defence of justice for women is a matter of the utmost importance for feminists.

I wish to consider Radcliffe Richards’ arguments for sexual justice. These argu- ments owe much to the ‘difference principle’; and largely to the exposition and advocacy of that principle by John Rawls [ 3 ] . In my view, Radcliffe Richards fails to support her demand for sexual justice by reference to the difference principle. Indeed, I will argue her heavy reliance on this principle and her failure to consider one obvious alternative vitiates her advocacy of sexual justice.

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‘Formal’ and ‘Substantial’ Justice

Janet Radcliffe Richards begins her discussion of sexual justice by distinguishing between ‘formal‘ and ‘substantial’ justice. Formal justice consists of applying laws consistently and impartially. On the other hand, substantial justice demands that such laws be just as well as impartially and consistently administered and applied. Radcliffe Richards sketches a state of affairs where formal justice may be enacted, but this leaves much to be desired viewed from the perspective of substantial justice. According to Radcliffe Richards: “The principles of substantial justice determine whether any act of formal justice is just or not” (p. 91). Where is this analysis leading us to and what is its relation to sexual justice?

Radcliffe Richards’ argument is a time-bomb ticking away to destruct at some later stage in the discussion of sexual injustice (or unjust negative discrimination) for men. For Radcliffe Richards argues that:

Formal injustice.. . occurs not only when laws are broken or misapplied, but also when any form of lying or cheating takes place, or when the rules and structures of society are changed, without due notice or compensation, to the disadvantage of people who have made plans according to old ones. (p. 92, italics mine)

Radcliffe Richards agrees that people, who complain that the rules of the game have been changed whilst they have been playing, have indeed something to complain about. If their property has been seized, or contracts broken “without due notice or compensation” they are right to complain that they have been treated unjustly. But Richards warns that as their complaint is against formal injustice: “it does not follow that they are being treated with substantial unfairness, which is what matters” (p. 92).

Such a warning and argument gives considerable support to those like Sandra Acker who, in a recent paper on sex discrimination in schools [4], argues that: “There may be instances where discrimination against members of a particular group can be just” (p. 111). She gives as an illustration of such just negative discrimination those circumstances when “we give a job to a woman solely because she is a woman” (p. 11 1). The consequence of such a decision, freely admitted by Acker, is that “we may be unjustly discriminating against an equally or better qualified man” (p. 111). In this instance, the man in question cannot complain on the grounds that: “past unfair structures had led him to think that he had a greater right than the woman to favourable treatment” (p. 11 1). Following Radcliffe Richards, this injustice to the man is an example of formal rather than of substantial justice-“which is what matters”. Now if this is the conclusion, it is wise to give the distinction, established by Radcliffe Richards between formal and substantial justice, a somewhat closer examination.

In her distinction between those two notions of justice she seems to be following John Rawls [ 5 ] . He argues: “Treating similar cases similarly is not a sufficient guarantee of substantive justice” (p. 59). Such is not a sufficient guarantee of justice (with or without the prefix ‘substantive’), but it is surely one of its necessary conditions: as in the Aristotelian maxim: treat equals equally and unequals une- qually. Indeed Rawls comments:

formal justice, or justice as regularity, excludes significant kinds of injus- tices. For if it is supposed that institutions are reasonably just, then it is of great importance that the authorities should be impartial and not influ-

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enced by personal, monetary, or other irrelevant considerations [and here we may be tempted to add considerations based upon sex] in their handling of particular cases. (p. 59)

Just so, and one cannot infer from this statement that formal justice would be contrary to sexual justice.

Those that wish to distinguish between formal and substantive justice often have in mind societies which appear to give careful attention to the strict and impartial administration of unjust laws and customs. Rawls cites slave or caste societies; readers could no doubt find instances from contemporary societies. But typically, the legal arrangements of such societies are criticised not for the absence of substantive justice as such, but for their lack of justice, full stop. The injustice of unjust institutions and societies resides in their attempt to enforce unjust laws; that is, laws that fail to satisfy the criterion of justice: not only that equal cases be treated alike, but also that the grounds for treating cases as equal are relevant to the treatment in question. It is because we may regard skin colour or sex as irrelevant grounds for separate treatment over a whole range of cases that we come to see racist or sexist laws as unjust.

Rawls is cautious enough to remark that the distinction between formal and substantive justice has not been observed by some. Thus he points out: “it is maintained that where we find formal justice, the rule of law and the honoring of legitimate expectations, we are likely to find substantive justice as well” (p. 60). This view Rawls describes as “certainly plausible” (p. 60). Perhaps the distinction between formal and substantive (‘substantial’ in Radcliffe Richards’s nomenclature) justice is established in times when the grounds for making distinctions relevant to justice becomes under question, and a matter of public controversy. At one time it is almost without debate that being female is a disqualification for a whole range of occupations; at another time it is not. Institutions adjust to these changes, perhaps lagging behind those in the vanguard who want such changes to be immediately enacted. But how far we are to depart from existing norms to assist those we now regard as unfairly treated remains debatable. Rawls, indeed, comments that:

How far we are justified in doing this [departing from existing norms], especially at the expense of expectations founded in good faith on current institutions, is one of the tangled questions of political justice. (p. 59)

However difficult in all conscience this tangled question might be, Radcliffe Richards is secure enough to answer: “Formal unfairness may be the only means to substantial fairness” (p. 93). Formal unfairness by Radcliffe Richards’s early account, amounts to: “any form of lying or cheating” and to changing the rules and structures of society “without due notice or compensation” (p. 92). Such are the measures of formal injustice which are to be (possibly) the only means to substantial justice. One wonders what kind of justice ‘substantial justice’ amounts to!

Sexual Justice and the ‘Difference Principle’

Janet Radcliffe Richards’s discussion of the supposed distinction between formal and substantial justice is, nevertheless, a prolegomenon to her employment of the ‘difference principle’ in support of sexual justice. Radcliffe Richards puts forward what she describes as two plausible and intuitively acceptable principles of justice. They are: (1) “the most important purpose of society is to improve the well-being of sentient things, which should all be as well off as possible”; and (2) “everyone’s

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well-being is to be considered equally; when social structures are planned no individual or group is to be given any more consideration than any other” (p. 93, italics removed). This is all very well-but are they principles of justice? Does (1 ) not rather beg the question that a society which is the best of all best possible societies might be a society without justice (unless justice is covertly smuggled in as a necessary requirement of such a society) ? Principle two looks more promising and this is the one Radcliffe Richards largely employs. (Those without collectivist leanings might have reservations concerning the notion of ‘planned social structures’ that suggests a perhaps crucial-and most unequal4istinction between the plan- ners and those whose lives are planned by others.)

Radcliffe Richards denies that from her initial statement, “everyone’s well-being is to be considered equally”, it follows that everyone is to be treated equally. Equality of consideration does not, it seems, lead to equality of treatment or allocation, for such absolute equality might lead to a state of affairs not satisfying her first principle: that we must create the best possible society for sentient things. Inequality is to be justified when, and only when, such inequalities are to the general good. Radcliffe Richards here claims to be defending a position very like the first part of the difference principle as laid down in John Rawl’s A Theoy ofJustice: in her formulation: “that social and economic inequalities are to be arranged so that they may reasonably be expected to be to everyone’s advantage” (p. 95). Certainly this justification of inequality is close to Rawls’ preliminary statement of his principles of justice-or at least of his second principle: “social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone’s advantage, and (b) attached to positions and offices open to all” (p. 60). Yet, as Flew [6] points out, Rawls shifts by a series of arguments to a ‘difference principle’ different indeed from that he earlier formulated. For Rawls restates his argument to conclude: “Social and economic inequalities are to be arranged so that they are both (a) to the greatest benefit of the least advantaged and (b) attached to offices and positions open to all under conditions of fair equality of opportunity” (p. 83).

The first part (a) of this latter enunciation of the difference principle is, perhaps, what Radcliffe Richards has in mind when she declares “It [the difference prin- ciple] gives a clear account of why some people should have more than others even though in the last analysis no one deserves more than anyone else” (p. 96). However, as Flew observes, there is a crucial distinction between justifying inequali- ties on the grounds of benefits for all and justifying such inequalities in terms of greater benefits to the worst off (however defined). For compare two societies S and S’. In society S the level of well-being is unity, although for the worst off group it is less than unity, and for the best off group rather more than unity. In comparison, society S’ overall has less well-being than society S, although its worst off group is no worse off than the worst off group in society S. In terms of Rawlsian justice, society S’ is more just than society S because, despite the fact that its overall level of well being is less than society S, relatively speaking its worst off group is better off than its equivalent in society S.

Identifying the Worst Off Group

Like Rawls, Radcliffe Richards, whatever her earlier view that inequalities are justified if (and presumably only if) they contribute to everybody’s well-being, concludes differently. For Radcliffe Richards, the claim of justice is satisfied when the worst off group in society (however defined) is as well off as possible: “The level

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of well-being for the worst off group is the criterion for deciding which among several possible states of society is the fairest” (p. 95). How does this formulation of the difference principle help in promoting sexual justice? It seems that the first step is to identify the worst off group whose well-being is to be the measure of justice. The immediate difficulty here is that who makes up such a group will be a function of diverse social arrangements. In a patriarchal society women may be the worst off group, whilst in Amazonia men as a group are most likely to be the least favoured or advantaged group. In society S, group M may be favoured relative to W, whilst in society S’, these relative positions and inequalities may be reversed. Is there, then, considerable difficulty in using, as a measure or criterion, a group whose member- ship and size varies according to prevailing social arrangements? As Rawls com- ments, in identifying the worst off group “it seems impossible to avoid a certain arbitrariness” (p. 98).

And in his arbitration Rawls picks out unskilled workers as a group and counts “as the least advantaged all those with the average income and wealth of this group, or less” (p. 98). If this is to be defined as the worst off group, following the difference principle, the arbitration does little to aid the cause of sexual justice. Rawls does not specify the sex of the unskilled worker, but this person is as likely to be male as female. If we include the dependants of the unskilled worker (male or female) no doubt we will include many women amongst them. Nevertheless, many women are skilled or professional workers, or the dependants of such. These could not be included in the worst off group. Rawls adds that “all persons with less than half of the median income and wealth may be taken as the least advantaged segment” (p. 98). But what if it turns out that women, at least in some societies- notably the USA-are, as a group relative to men, the better off in terms of income and wealth? Nor is this all that unlikely given that women on average live longer than men: thus there are more widows than widowers with all that this means in terms of income distribution.

Perhaps we ought to concern ourselves more with the well-being of the worst off group rather than with its membership. If in society S the well-being of the worst off group W is worse than the well-being of worst off group M in society S‘, then are the social arrangements of society S’ the more just? Something like this seems to be suggested by Radcliffe Richards’ argument: “The criterion should really be some- thing like ‘the present solution is unjust if we could improve the position of women without making men worse off than women are now”’ (p. 97). In other words, the inequality of women relative to men is unjust only if we can reorder our social arrangements so that men may be less favoured than women, but no more disadvan- taged than women are now-but no less it must be presumed. In these circum- stances the well-being of worst off group (women) in ‘the present situation’ will be equal to the well-being of worst off group (men) in the future society employing Radcliffe Richards’ criterion. It is difficult to see, then, how the difference principle (as formulated by Radcliffe Richards) can provide support for sexual justice. For if in two societies the worst off groups within them are equal in misery, there is, according to the difference principle, nothing to choose between the two societies as far as justice is concerned. Indeed Radcliffe Richards’ criterion requires rephras- ing-following the difference principle-to read something like: the present situa- tion is unjust if we could improve the position of women whilst ensuring that men are not as badly off as women are now. But will this satisfy the claim of sexual justice?

In Rawls’s substantial work of over 600 pages, there is only one reference (and

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that not indexed) to sexual inequality, and it is an acknowledgement that such inequality may be justified “only if it is to the advantage of women and acceptable from their point of view” (p. 99). In addition Rawls uses the term ‘man’ throughout A Theory of Justice in its traditional and conventional sense of embracing men and women; although his references to unskilled workers and to representative men are rather less than sexually neutral. Rawls’ book provides, then, a strange point of reference for a feminist like Radcliffe Richards who believes that, from a philosophi- cal point of view “the use of ‘man’, ‘he’ and the like are not sexually neutral at all” (p. 291). However, Radcliffe Richards finds the thought that the difference princi- ple may be used to justify sexual inequalities disturbing-as well she might. Nevertheless, these doubts and difficulties do not lead her to reject such a principle as a means of support for sexual justice. Quite the contrary, for she argues from the premise that such an argument has been employed to justify the subjugation of women over the centuries, to the conclusion that this demonstrates the intuitive acceptability of it as a principle of justice!

Let us return to Radcliffe Richards’ clearest formulation of the difference principle: “The level of well-being for the worst off group is the criterion for deciding which among several possible states of society is the fairest” (p. 95). Yet as we have seen, deciding what is the worst off group in ‘several states of society’ is necessarily a matter of arbitration. One cannot conclude that the same group will be identified in all possible states of society. It follows then, that we cannot decide whether the improvement in the well-being of group W in a change from society S to society s’ is indeed any improvement in fairness. Group W may not be the worst off group in society S; group M (or any other identifiable group) may be as badly off, or worse off in society S’ as the W group was in society S. The difficulties of employing the difference principle in unambiguously deciding which of a variety of states of society is just have been engagingly explored by Nozick [7]. Radcliffe Richards is well aware of all these difficulties for as she plaintively observes: is the difference principle of any use

if it cannot give a clear guide to whether a particular state of things is just or not without our knowing in detail all the possibilities the world contains, and whether it would indeed make everyone worse off to make many alterations in the present state of society? (p. 96)

There is also something odd in describing women in society as a group in society. Women are, after all, half the human race. This is somewhat more, or different from, a group: a term which suggests, as Rawls notes, a degree of arbitration. Nor is it clear that all women are uncontentiously worse off than all men. Some men, poor, unskilled, and of low status, may be worse off, by any reasonable standards, than many women. It flies in the face of obvious facts of social life to say otherwise. We may also identify the worst off in terms that make questions of sex and gender irrelevant. We could describe the sick, the disabled, and the deformed, as the worst off. From another perspective, we may see the old as the worst off. Defining the worst off group is truly a matter of arbitration.

Why the Difference Principle?

Given, then, the many objections, some of which I have discussed, to the use of the difference principle as a criterion for sexual justice (and of which Radcliffe Richards is well aware and senses the force), why does she cling to it as the major

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argument-perhaps the only o n e i n defence of sexual justice? It is because she believes: “There is unfortunately no alternative.. .” (p. 97). Is there, then, no alternative to employing the difference principle, as this allegedly constitutes a major principle of justice? And despite the fact that this principle gives us no help in the practical problem of making just and fair decisions? But of course she is mistaken, for the principles of justice rest not upon hypothetical states of future societies, but upon questions of desert and entitlement. And, indeed, what women complain about, when they complain of injustice, is that they do not have what they truly deserve, and are entitled to. A major purpose of legislation such as the Equal Opportunities Act, 1970, and the Sex Discrimination Act, 1976, is to ensure that women (and men for that matter) are treated justly with respect to their deserts and entitlements. For example, that teachers and employers treat women according to their abilities, qualifications, and experience, rather than largely according to their sex.

A supporter of justice for women is, afortioti, committed to justice for all: for as Radcliffe Richards remarks: “As a matter of logic.. .concern for justice for a particular group must derive from general principles of justice” (p. 291). Such general principles cannot support favourable treatment for women (or men) to which they are neither entitled nor deserve. Women, seeking redress for injustices, are not arguing that every woman must everywhere be more favourably treated than men, only those that are entitled to such treatment. Radcliffe Richards elsewhere in her book argues against the notion of the quintessence of womanhood. Or as Mary Gibson puts it, in a review of Women in Top Jobs, 1968-1979: “women cannot be regarded as a mass; they have as many different levels of intelligence, education and temperament as men” [ 81 .

Why is it then, that Radcliffe Richards cannot see the blindingly obvious? That justice as entitlement provides an alternative approach to a theory of justice based upon the difference principle; and one that better serves the cause of feminism. I believe it is, in part, because from her premise that: “In the last analysis all abilities, strengths, and advantages are accidental.. .” she concludes “. . . no one deserves more than anyone else” (p. 95). Flat or absolute equality is not acceptable to Richards for the reason already stated: that such equality would not lead to the best possible society for sentient beings. Inequalities can, therefore, only be justified by some version of the difference principle. Thus there is no alternative. . .

We may escape pinning by this particular fork if we give more attention to the argument that leaps from the premise, natural attributes are not deserved, to the false conclusion that such natural attributes are therefore no source of entitlement. For example, are we to argue that a woman who uses her natural gift for music making, and by dint of perseverance and hard work becomes a popular singer, does not deserve, merit, and is not entitled to, whatever rewards and praise that come her way? This point is well put by Flew: “. . .it will not do to argue, with Rawls and with so many others, from the premise that our natural characteristics are not themselves deserved, to the conclusion that what they make possible cannot be either itself deserved or a proper basis of desert” [ 9) .

Radcliffe Richards sees some of the difficulties of employing a theory of justice that does not-‘in the last analysis’-acknowledge the notions of desert and entitle- ment. It is not simply that some women fail to get what they deserve or are entitled to; the Rawlsian view of justice, within which Radcliffe Richards seems trapped, denies to anyone, male or female, deserts or entitlements. The origins of such deserts

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and entitlements are seen to be contingent and accidental, and as a consequence whatever arises from such origins, cannot justify a right, a reward, or desert.

Thus, Radcliffe Richards permits herself-ne suspects against her better philo- sophical judgement-to use the difference principle to square the moral circle: to justify unjust negative discrimination against men. I say against her better philo- sophical judgement for she does concede that “reverse discrimination does allow scope for substantial injustice” (p. 118, my italics). Nevertheless, a theory of justice, which has as one of its tenets the view that “in the last analysis no one deserves more than anyone else”, is clearly a theory of use to those who wish to reorder society without respect to that to which women and men are legitimately and rightfully entitled.

Correspondence: B. Shaw, 30 Geoffrey Avenue, Neville’s Cross, Durham DHl 4PF, England.

NOTES AND REFERENCES

[ 11 RICHARDS, JANET RADCLIFFE (1980) The Sceptical Feminist, a Philosophical Enquiry (London, Routledge & Kegan Paul).

[2] NOZICK, ROBERT (1974) Anarchy, State, and Utopia, p. 232 (Oxford, Blackwell). [ 31 RAWLS, JOHN (1972) A Theory of Justice (Oxford University Press). [4] ACKER, SANDRA (1981) Sex discrimination in education: a reply to Shaw, Journal of Philosophy of

Education, 15, pp. 107-118. [ 5 ] See John Rawls, op. cit. pp. 54-60. Radcliffe Richards uses the term ‘substantial’ rather than

‘substantive’ employed by Rawls as a prefix to ‘justice’: but the notion is much the same. [ 6 ] See FLEW, ANTONY (1981) The Politics of Procrustes. Contradictions of enforced equalities, pp. 74-79

(London, Temple Smith). [7] ROBERT NOZICK, op. cit., pp. 189-197. [8] Mary Gibson in a review of Women in Top Jobs, 1968-1979, by Michael Fogarty, Isobel Allen and

Patricia Walters (London, Heinemann, 1981), in The Listener 15th October 1981. [9] ANTONY FLEW, op. cit., p. 105.