Alchemy or Fool's Gold? Assessing Feminist Doubts About Rights
Kiss, Elizabeth
Should rights play an important role in feminist theory and practice? The answer to this question is not as simple as it first appears, for contemporary feminism has a profoundly...
...B. the rights critique that I am exploring is formulated as an injunction against abandoning women to their rights...
...3) More complex problems about rights and abandonment are raised by what I have called substantive issues...
...Moral vocabularies do not carry a no-risk guarantee...
...As many feminist theorists have pointed out, the injuries and deprivations women experience because of their gender have never been adequately captured by traditional conceptions of rights...
...Women claim rights, for example, to full participation in political, professional, and economic life...
...For instance, women make uncoerced decisions in wealthy Western societies to starve themselves so as to attain a waiflike look...
...Yet doubts about rights are widely shared...
...These choices require attention to the distribution of care and so raise questions of justice...
...Again, the challenge is to redefine rights and rules so that they are no longer exclusionary in their effects...
...She described a distinctive moral voice, which spoke of caring and relationship and which, she claimed, was more commonly employed by women...
...But rights cannot, by themselves, answer the question of what equality means and requires...
...To abandon someone is to be indifferent to their fate, to fail to show concern for how they fare...
...Not surprisingly, the most promising attempts by feminist theorists to think about the policy implications of an ethic of care have paid explicit and unapologetic attention to rights...
...The deeper problem with the conceptual critique is that it fails to recognize the specific importance of liberty and immunity rights to women...
...8 Annette Baier, "Hume, the Women's Moral Theorist...
...Rights have to be assessed by whether they actually make a difference in people's lives...
...The concept implies a moral absolutism in which the self is unencumbered by obligations to others...
...and to gender equality within marriage...
...The lesson to be drawn from these examples is that we should conceive of rights not as commodities the law grants us, but as relationships to be established and secured...
...Feminists must also address substantive moral and cultural questions about women's (and men's) aspirations and desires, their sense of what is good and what can give meaning to their lives...
...232, 286...
...The classic example is the way relationships of inequality, abuse, and exploitation within marriage have been given moral protection by liberal conceptions of the private realm...
...Richard Rees (Oxford University Press, 1962), p. 21...
...The obvious example of explicit exclusion is slavery, in which some people are singled out as objects of the rights of others...
...there are a number of distinct issues at stake...
...Small wonder, then, that some theorists have ascribed a transformative power to rights, a power Patricia Williams recently likened to alchemy.' Contemporary Anglo-American feminist theory, on the other hand, paints a dramatically less positive picture, expressing misgivings about or even outright hostility to rights talk...
...Of course, any moral system that values personal autonomy has to accept that people will make mistakes...
...Voluntary pregnancy by very young women who want to become mothers because they see this as the one positive accomplishment available to them (despite the fact that early parenthood is likely to limit their opportunities) provides a poignant example...
...The contemporary vernacular of rights combines a commitment to moral equality with a complex set of normative relationships—liberties, immunities, claims, and powers—designed to make that equality possible...
...Women who opt for breast implants are clearly exercising a right over their bodies...
...6 Marilyn Frye, The Politics of Reality: Essays in Feminist Theory (Freedom, California: The Crossing Press, 1983), pp...
...In doing so it ignores the complexity and range of the idea...
...By specifying what people can do or expect from each other, such rights transform relationships, altering their internal distribution of power...
...The first two concern critiques of the concept of rights—of the images of self and society legitimated by rights and of the role of rights within political and moral argument...
...Feminist writers aim to correct this onesidedness by drawing on a critical but appreciative encounter with women's lives...
...But in looking to the future, many of them take a negative or skeptical attitude: the language of rights, they claim, cannot adequately represent women's experience...
...But the fact that an estimated 1.6 million women in the United States have chosen to enlarge their breasts for cosmetic reasons is troubling from a feminist perspective...
...9 Kim Lane Scheppele, "Constitutionalizing Abortion," paper presented to the American Political Science Association, Chicago, September 1992, p. 3. SUMMER • 1995 • 347...
...Women (like other disadvantaged groups) may have formally equal rights in the labor market but be doomed, through inequalities of wealth, education, and influence, and the invidious effects of prejudice and harassment, to lower status jobs...
...Rights talk can be used to justify selfishness, privilege, and indifference in the face of human suffering...
...As Kim Scheppele has argued, some West European legal systems appear to limit abortion severely, but in practice early abortions are easy to obtain...
...The solution to these problems is more thinking about rights rather than less...
...Some feminist "post-structuralists" characterize rights language as inextricably bound up with hierarchies of gender and with the outdated and patriarchal fiction of a unitary self...
...In their efforts to articulate this critique and to realize this dream, feminists need to confront issues that transcend the realm of rights...
...I can imagine a society with greater gender equality than ours in which men and women would change the shape of their body parts to please themselves and their loved ones, just as people change their hair styles...
...But it is misguided and dangerous for them to turn their back on rights in the process...
...Rights have figured prominently in moral and political arguments that downplay the extent of human interdependence and that minimize the moral claims people can make on one another...
...It is particularly associated with the classical liberal triad of life, liberty, and property...
...Another example: self-defense laws that require a proportionality of force that is unrealistic in cases of unequal physical strength...
...2) Rights-based approaches can also abandon those they are supposed to help when they ignore crucial strategic issues about how rights can be made effective...
...This may seem an obvious point, but it is one thing to acknowledge it and quite another to develop a rich and persuasive account of other moral concepts and values...
...Vulnerable and stigmatized groups have the most to gain from the protection that "abstract and impersonal" frameworks can provide...
...I will divide my response to these questions into three parts...
...Indeed, as Martha Minow has argued, the very act of ascribing rights to someone implies a moral connection to them...
...others still, for encouraging rigid, rule-bound approaches to moral and social life...
...103-4...
...In a few cases, feminist theorists portray the dangers of rights talk in more apocalyptic tones: the rights-bearing person is self- destructive and lives in a socially fragmented world that threatens to collapse into a "Kafkaesque nightmare of solitary individuals...
...And the third is exemplified by situations in which people systematically do themselves harm by exercising a right...
...Rights to equal opportunity may also be biased by gender neutral requirements that systematically exclude women, such as minimum height rules for certain jobs...
...The internal complexity of rights was perhaps best captured by Wesley Hohfeld in 1919 when he noted that rights can confer liberties, immunities, claims, and powers...
...Indeed, the most striking aspect of feminist doubts about rights is that they come from so many otherwise disparate viewpoints...
...Many struggles central to the feminist movement, such as those to repeal the laws of coverture, to make marriage consensual, and to criminalize rape and sexual harassment are efforts by women to set their own boundaries...
...Rights define a community...
...In the third part, I will turn to feminist concerns about their practical value...
...Another example is the widespread voluntary use by women of implants for breast enlargement to "cure" the "problem" that plastic surgeons call "micromastia" (small breast size...
...They appear to grant a valuable moral victory but actually help to obscure women's continuing subordination...
...Nevertheless, struggles by women to vindicate rights have changed the social world, altering relationships, practices, and institutions, and affecting the way innumerable wer- en perceive themselves...
...I shall indicate three ways in which rights can fail us in practice: the problem may be definitional, strategic, or substantive...
...But widespread harmful exer346 • DISSENT Feminism and Rights cises of a right may reflect deeper moral problems within a society...
...it redefines it...
...There is nothing isolating about a right to vote...
...Other examples of exclusionary definitions are laws that once gave husbands automatic rights over their wives' property and prevented married women from owning property in their own right...
...The guarantee to be left alone, free of interference from others, is certainly a central image of what it means to have a right...
...For feminism is not, of course, a unitary movement, but rather a diverse and contentious field of inquiry and action...
...Rights talk, Nancy Hirschmann has argued in a recent example of this view, provides a language of "distrust and competition" rather than of"relationship...
...Sometimes people harm themselves in exercising their rights...
...When a woman is still struggling for "`a room of her own," Frances Olsen has noted, "she is unlikely to complain that rights isolate her...
...Beyond Rights: Care and Other Values A second set of feminist doubts about rights arises from a conviction that we should pay more attention to other concepts and values...
...It entirely ignores the ways in which rights give us claims on other people and powers to alter moral and legal relationships...
...By contrast, the post-Roe United States affords constitutional protection for early abortions, but these have become increasingly difficult to obtain in many parts of the country.' Second, a right may be vitiated or at least seriously weakened if the procedures or strategies associated with claiming it, and in particular for demanding redress when it has been violated, are themselves ineffective, intimidating, or degrading...
...nor can it articulate the moral and political problems of greatest concern to feminists...
...Or do they misjudge rights, or misunderstand their value for women...
...Rights have figured prominently in the rhetoric of the women's movement from the beginning, even if the line of descent has not been smooth: feminists have had to rebel against the Fathers of rights theory, who preached the equal dignity of all while systematically denying it to most...
...A commitment to freedom means letting people make their own mistakes...
...Addressing such issues requires continued efforts to widen women's private and public opportunities and rights...
...The feminist view that rights separate and protect us from others conceives rights as liberties to do as we please and immunities from interference...
...The problem is not that the women do not have the rights in question but that having them is unhelpful...
...How can a social policy based on a defense of rights constitute a failure of concern...
...Legal and administrative procedures for claiming redress can be costly, can further victimize the victim, can enmesh victims in intimidating professional-client relationships...
...Rights talk does not capture the whole of morality...
...In a world in which many women are continually vulnerable to abuse, especially abuse by people claiming connection to them through bonds of love, family, religion, or culture, an uncritical celebration of "connection" at the expense of "demarcation" commits a utopian fallacy...
...There are at least three ways in which this can occur: first, formal equality of rights can obscure real inequalities that make it difficult or even impossible for those in less powerful positions to exercise their rights...
...As rights-bearers "we are separated . . . from each other" so that "to respect a person's rights is to keep one's distance from her.' Rights define us as bounded selves requiring protection from the encroachments of others, who threaten our autonomy and integrity...
...Thus the claim that wives have a socially guaranteed immunity right against coerced marital sex profoundly alters marriage: it gives wives new power and transforms them into SUMMER • 1995 • 343 Feminism and Rights something more than performers of sexual duties...
...This can happen explicitly or implicitly...
...inclusion in that community means that my interests, aspirations, and vulnerabilities matter...
...1) Focusing on rights can be unhelpful or harmful if they are defined in ways that systematically leave women out...
...Soviet-style legal systems provided extreme examples of this phenomenon, guaranteeing rights in the Constitution and then vitiating them through statutory clauses that required that they be exercised "in accordance with socialist values"— which, in effect, made illegal any exercise of a right in opposition to the ruling party...
...The boundary-marking characteristic of liberties and immunities is of critical importance to society's most vulnerable members...
...The problem with traditional liberal or libertarian views is their tendency to cast the state as the primary rights violator, ignoring the ways in which non-state actors (for instance, employers or spouses) can threaten freedom and well-being...
...In her influential book In a Different Voice, Gilligan took issue with conventional models of moral development...
...It is no coincidence, they suggest, that Joel Feinberg, in his well-known essay "The Nature and Value of Rights," wrote that "Having rights enables us to `stand up like men,' to look others in the eye, and to feel in some fundamental way the equal of anyone...
...By focusing on individual litigation, they can also privatize and narrow claims of harm in ways that obscure the larger structural inequalities at the root of the problem...
...Rights will not achieve gender justice...
...The answer to this question is not as simple as it first appears, for contemporary feminism has a profoundly ambiguous relationship to rights...
...Affirming the moral importance of personal relationships does not resolve the hard choices about caring for intimates, fellow citizens, and strangers that political communities must face...
...Many feminists want to criticize such views and the laissez-faire arrangements they legitimate...
...they can always be put to a range of uses...
...But it does not fit many traditional liberal rights such as rights to vote, to a fair trial, to marry or divorce, to form associations, or to enter contracts...
...The gap between legal principle and practice can work the other way, too...
...To focus on rights, they all say, is to abandon an effective commitment to women's emancipation...
...Feminists should not "abandon women to their rights...
...Reasons for Skepticism Feminist attacks on rights because of the images of self they foster operate as surrogates for a substantive critique of unattractive political views...
...What is needed, in other words, is a redefinition of rights...
...Gilligan's arguments have been taken up (as well as criticized) by feminist moral and political theorists...
...Women, these critics suggest, shouldn't strive to "stand up like men...
...7 Frances Olsen, "Statutory Rape: A Feminist Critique of Rights Analysis," University of Texas Law Review 387 (1984...
...Rights don't provide us with the capacity to critically scrutinize our assumptions, or the ability to imagine and pursue better things...
...What is problematic about current practices of breast enlargement (beyond the health risks these procedures may entail) is what they reveal about women's judgments of their own worth and social value—and so about the gendered nature of selfrespect in our society...
...We still need general principles that tell us who should receive care, why care is important, and what distinguishes its valuable from its ineffective or dangerous forms...
...In practice, definitional, strategic, and substantive concerns are often intertwined...
...This is also a form of abandonment, since the harm has already occurred by the time the rights strategy kicks in...
...To be sure, the capacity of rights talk to demarcate boundaries and revoke access is not always put to morally attractive uses...
...The conceptual critique of rights is problematic even if we recast it as an explicit argument against the liberty and immunity rights celebrated by libertarians...
...Marilyn Frye has argued that "total powerlessness is being unconditionally accessible . . . the slave who decides to exclude the master from her but is declaring herself not a slave...
...The argument about abandonment is, I think, complex...
...A number of complex but important feminist issues fall into this category...
...In a slave system, rights are violated when a slave escapes...
...Taken together, these three examples reveal how rights strategies can abandon those they are supposed to help by ignoring the social and political changes required to make rights effective...
...But this immunity does not deny or destroy the relationship of marriage...
...Proponents of a feminist politics of difference describe rights talk as overly abstract and impersonal...
...Arguments like these lead some feminists to conclude that the moral vision of self and society associated with the concept of rights is characteristically masculine, morally unattractive, or both...
...Theorists of care have begun to do this...
...Contemporary moral and political thought, on this view, is excessively dominated by a legalist and rationalist model of moral life...
...Other feminist scholars criticize rights for reflecting a selfish and atomistic view of human nature and an aggressive and conflictual view of social life...
...Are feminist critics of rights right...
...On the one hand, so many feminist goals have been and continue to be expressed as demands for rights that their central role seems assured...
...in Eva Kittay and Diana Meyers, eds., Women and Moral Theory (Rowman and Littlefield, 1987), p. 40...
...Feminists agree on the salience of gender and on the need to overcome women's subordination...
...4 Joel Feinberg, "The Nature and Value of Rights," Rights, Justice, and the Bounds of Liberty (Princeton University Press, 1980), p. 151...
...It ignores or underplays the importance of activities, relationships, and attitudes that have traditionally been associated with women...
...Feminists who embrace an "ethic of care" contrast their approach with a culturally masculine "ethic of rights...
...This may be the case if a right is defined in a way that, despite apparent gender neutrality, excludes women—for example, a medical insurance plan that supposedly offers equal coverage for male and female workers but then excludes pregnancy-related expenses...
...The second refers to the tendency of rights advocates to be insensitive to strategic questions about how a given right can be effectively institutionalized...
...Many protections critical to women are best understood as liberty or immunity rights guaranteed by the state...
...Beyond that, we disagree about almost everything—theories, histories, and strategies...
...These kinds of rights disappear from view in feminist critiques, which therefore ignore the ways in which rights express and institutionalize not only abstract and conflictual but also concrete and cooperative values...
...q Notes I Patricia Williams, The Alchemy of Race and Rights (Harvard University Press, 1991...
...Echoing Carol Gilligan's influential contrast between two moral voices, the first expressing an "ethic of care," the second an "ethic of rights," critics contrast a feminist (or feminine) self, connected to others, with a rights-bearing self, which is (or at least thinks it is) separate from others...
...But it is helpful to distinguish them because they lead to different sorts of "abandonment" and pose different challenges to rights theory and policy...
...Their writings also provide insight into the rights project, suggesting that achieving greater respect for others requires not so much a better capacity to discern universal principles as what Annette Baier has called "a progress of sentiments...
...Practical Questions The feminist objection that poses the most direct challenge to rights-focused approaches to politics is also the most concrete and practical: it claims that a rights approach fails to enable women actually to change their lives...
...Third, rights strategies may concentrate on attaining ex post facto redress for violation or neglect of rights rather than on the forms of mobilization required to prevent the violation or neglect in the first place...
...342 • DISSENT Feminism and Rights Connections and Boundaries The most common feminist criticism of rights is the charge that they entail an undesirable vision of self and society...
...Yet the problem, as I've argued, is not with rights as such...
...The issue is contextual...
...5 Elizabeth Fox-Genovese, Feminism Without Illusions (University of North Carolina Press, 1991), p. 32...
...In its strongest form—where it claims or implies that women should abandon the language of rights—this critique is undertaken from a politically naive perspective, distant from the lives of most women...
...This shift in focus is best exemplified by work within the ethics of care, inspired in large part by Carol Gilligan...
...I don't mean that feminist theorists deny the gains women have achieved in the last century through struggles for rights...
...This is the classic critique articulated with elegant irony by Anatole France: "The law, in its majesty, grants rich and poor alike an equal right to sleep under bridges...
...In our relationships with partners, spouses, children, and friends, we tend to regard an attitude defined by and limited to a concern for the other person's rights as morally problematic: it constitutes a failure of intimacy...
...But why have so many feminists found this overstated critique so compelling...
...This feminist critique equates the concept of a right with a claim to noninterference...
...Another example is the marital exception to rape laws, which makes it impossible for a husband to be charged with raping his wife...
...Moreover, successful redress may be so indirect that it is not experienced as helpful by the person who was harmed...
...to control over their reproductive lives...
...it legitimates aggressive selfishness and denies community...
...Their choices are heavily influenced, of course, by advertising and the media—but this doesn't alter the fact that they are choices...
...Less dramatic examples of this phenomenon are depressingly common...
...In these cases it seems obvious that a (revisionist) concern with rights is precisely what is SUMMER • 1995 • 345 Feminism and Rights necessary: women must be legally recognized as having the right to own property and to consent (or not) to sexual intercourse...
...Theories of care that ignore the ways in which intimacy can be a site of inequality, exploitation, and abuse threaten to romanticize the very relationships (like marriage and family) that feminist proponents of rights sought to criticize in the first place...
...More urgent are those cases in which hierarchies and vulnerabilities of gender combine with those of class, culture, and race to constrain women's hopes and dreams in ways that are .selflimiting and even self-destructive...
...So we should be skeptical about arguments that claim natural, self-evident, or in some other sense final validity for any particular version of rights theory...
...But there is another dimension to these cases that is not, I think, well captured by rights talk...
...According to them, the mainstream of contemporary ethics has ignored or underplayed the relevance of 344 • DISSENT Feminism and Rights intimate relationships in moral life in favor of a public, rational, legislative model...
...Formal procedures for dealing with rape, gender discrimination, and sexual harassment exhibit many of these features...
...In stark contrast to Patricia Williams's argument that rights are talismans of empowerment with a transformative potential analogous to alchemy, this objection portrays rights as instruments of abandonment with the allure of fool's gold...
...It fails on logical grounds because liberties and immunities typically define, rather than deny, relationships...
...Contrary to the claims of some feminist theorists, however, the ethics of care gives us no reason to abandon rights talk...
...But they do not demonstrate the futility of rights as such...
...On the contrary, these conceptions have served to obscure— even to legitimate— women's injuries...
...And yet the effects of these choices are clearly harmful and even, occasionally, deadly...
...3 Simone Weil, Selected Essays:1934-1943, ed...
...2 Nancy Hirschmann, Rethinking Obligation (Cornell University Press, 1992), pp...
...Feminists who issue sweeping denunciations of rights as too abstract, individualistic, and conflictual ignore the ways in which women need precisely these kinds of rights...
...But there is no necessary link between the concept of rights and a substantive political position like libertarianism...
...The first is when rights are defined in such a way that women are systematically left out of their enjoyment or exercise...
...Why, in other words, might attention to women's lives encourage skepticism toward rights...
...Feminists have persuasively criticized traditional understandings of the public/ private distinction, stressing how politics shapes these boundaries and how oppressive power relationships persist within them...
...Feminism represents a profound cultural criticism and a radical dream, a dream of a world that has overcome women's social subordination...
...As Simone Weil complained half a century ago, rights produce a "shrill clamor of claims and counter-claims...
...In the process, personal connections, and the attentiveness and responsibility that is the first virtue of human relationships like those between parents (especially, given traditional gender roles, mothers) and children, have not received the theoretical attention they deserve...
Vol. 42 • July 1995 • No. 3
