Defenders of a feminist conception of justice present a distinctive challenging critique to defenders of other conceptions of justice. In his The Subjection of Women (1869) Mill, one of the earliest male defenders of women's liberation, argues that the subjection of women was never justified but was imposed upon women because they were physically weaker than men; later this subjection was confirmed by law. Mill argues that society must remove the legal restrictions that deny women the same opportunities enjoyed by men. However Mill does not consider whether because of past discrimination against women it may be necessary to do more than simply remove legal restrictions: He does not consider whether positive assistance may also be required.
Usually it is not enough simply to remove unequal restrictions to make a competition fair. Positive assistance to those who have been disadvantaged in the past may also be required, as would be the case in which some competitors were unfairly impeded by having to carry ten-pound weights for part of a race. To render the outcome of such a race fair, it may be necessary to transfer the weights to other runners, and thereby advantage the previously disadvantaged runners for an equal period of time. Similarly positive assistance, such as affirmative action programs, may be necessary to enable women who have been disadvantaged in the past to compete fairly with men.
In Justice, Gender, and the Family (1989), Susan Okin argues for the feminist ideal of a gender-free society. A gender-free society is a society where basic rights and duties are not assigned on the basis of a person's biological sex. Since a conception of justice is usually thought to provide the ultimate grounds for the assignment of rights and duties, we can refer to this ideal of a gender-free society as feminist justice.
Okin goes on to consider whether Rawls's welfare liberal conception of justice can support the ideal of a gender-free society. Noting Rawls's failure to apply his original position-type thinking to family structures, Okin is skeptical about the possibility of using a welfare liberal ideal to support feminist justice. She contends that in a gender-structured society, male philosophers cannot achieve the sympathetic imagination required to see things from the standpoint of women. According to Okin, original position-type thinking can only really be achieved in a gender-free society.
Yet while Okin despairs of doing original position-type thinking in a gender-structured society, she herself does a considerable amount of just that type of thinking. For example, she claims that Rawls's principles of justice "would seem to require a radical rethinking not only of the division of labor within families but also of all the nonfamily institutions that assume it" (p. 104). She also argues that "the abolition of gender seems essential for the fulfillment of Rawls's criterion of political justice" (p. 104). Okin's own work indicates that people can engage in original position-type thinking and her reasons for arguing otherwise are not persuasive. It is not necessary that all people have the capacity to put themselves imaginatively in the position of others, just that some have the ability to do so. Some people may not be able to do original position-type thinking because they have been deprived of a proper moral education. Others may be able to do original position-type thinking only after they have been forced to mend their ways and live morally for a period of time.
Even among those in our gendered society who are, generally, capable of a sense of justice, some may not be able to do original position-type thinking with respect to the proper relationships between men and women and may acquire the ability only after laws and social practices shift significantly toward a more gender-free society. Others may have the ability to think in this in this way, having effectively used the opportunities for moral development available to them to achieve the necessary sympathetic imagination.
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