Gender, Negotiating Gender and (Free and Equal) Citizenship: The Place of Associations
Gender, Negotiating Gender and (Free and Equal) Citizenship: The P lace of Associations
Linda C. McClain 0 1
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1 Linda C. McClain, Gender, Negotiating Gender and (Free and Equal) Citizenship: Th e Place of Associations , 72 Fordham L. Rev. 1569 (2004). Available at:
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It is a great honor to be part of this symposium devoted to
considering the import of the work of John Rawls for law. I consider
myself a liberal feminist, and my understanding of liberalism owes
much to Rawls's inspiring work. I am also honored to have been on a
panel on "Equal Citizenship: Gender" with Susan Moller Okin, from
whose pathbreaking work on justice, gender, and families I have
learned much.1 Her work was an important opening salvo in what
remains, as she puts it, an "unfinished debate" between Rawls and
feminists about justice and gender, and it prompted Rawls to make
more explicit both the place of families in a well-ordered society, as
well as the place of justice within families.2
One focus of my own participation in this debate is to work out a
liberal feminist account of the place of families in what I call a
formative project of fostering the capacities for democratic and
personal self-government.' In a previous symposium in this series of
conferences on constitutional theory, The Constitution and the Good
Society, I addressed the question of the domain of sex equality,
arguing that sex equality is a component of civic virtue and a public
* Professor of Law, Hofstra University School of Law. This Article grew out of my
presentation for the "Equal Citizenship: Gender" panel at the Conference on Rawls
and the Law, held at Fordham University School of Law, November 7-8, 2003. I
thank my co-panelists, Tracy Higgins, Susan Moller Okin, and Marion Smiley, as well
as conference participants, for helpful discussion of the issues raised in this Article.
Thanks also to Nora Demleitner, Jim Fleming, and Gila Stopler for valuable
comments. Thanks to my research assistant Tali Harel and to law librarian Cindie
Leigh for help with sources. A research grant from Hofstra University supported this
Article.
1. Susan Moller Okin, Justice, Gender, and the Family (1989).
2. Susan Moller Okin, Justice and Gender.An Unfinished Debate,72 Fordham L.
Rev. 1537 (2004). Rawls addresses Okin's criticisms of his treatment of families in
John Rawls, Justice as Fairness: A Restatement 162-68 (Erin Kelly ed., 2001), and in
John Rawls, The Idea of Public Reason Revisited, 64 U. Chi. L. Rev. 765 (1997)
[hereinafter Rawls, Public Reason]. Tragically, Professor Okin died just as I was
finishing this Article. Regrettably, this debate, to which she contributed so much, will
remain doubly unfinished. The insightful work she did during her life, however, will
continue to inform it.
3. I explain this approach in a book, The Place of Families: Fostering Capacity,
Equality, and Responsibility (under contract with Harvard University Press).
value relevant to the regulation of families.4 In the present Article, I
will focus on the place of associations both within political liberalism
and in the feminist liberalism I espouse. I will use the term
"associations" to refer to institutions of civil society other than
families: religious institutions, cultural institutions, and the array of
voluntary nongovernmental organizations that are found in society.
Just as feminists question whether Rawls's A Theory of Justice
adequately attended to justice within families, thus missing the
problem of sex inequality, so they also worry that his treatment of
associations and, in particular, religious and cultural institutions, in
PoliticalLiberalism may hinder women's equal citizenship. Here, too,
Okin's critique of Rawls's political liberalism is instructive.5
This Article begins by recapitulating how Rawls presents the place
of associations. I focus on his view that associations underwrite a
stable political order and foster the basic good of self-respect, even as
the principles of justice shape the domain of associational life.
Political liberalism distinguishes between the domain of the political
and the domain of civil society, yet it posits a relationship of mutual
support, or of reciprocally constituting domains. What implications
does this distinction, as well as this relationship of support, have for
the issue of gender and free and equal citizenship? Does Rawls's
attention to this issue offer a satisfactory response to feminist
concerns? In taking up criticisms of Rawls's response by Okin, as well
as by liberal feminist Martha Nussbaum,6 I offer a reading of Rawls
that is more optimistic as to grounding support for the freedom and
equality of women within political liber (...truncated)