Gender, Negotiating Gender and (Free and Equal) Citizenship: The Place of Associations

Fordham Law Review, Dec 2004

By Linda C. McClain, Published on 01/01/04

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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 0 Thi s Article is brought to you for free and open access by FLASH: The F ordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The F ordham Law Archive of Scholarship and History. For more information , please contact 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: - 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)


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Linda C. McClain. Gender, Negotiating Gender and (Free and Equal) Citizenship: The Place of Associations, Fordham Law Review, 2004, Volume 72, Issue 5,