Culture Constrains Janet Halley
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Susan Okin correctly observes that women's rights conflicts are extremely salient in debates over "cultural rights." Unlike Okin, I take this as a sign that women's-rights discourse is alive and well, making productive friction on a global scale. What puzzles me is that women's issues are so often thought to exhaust the supply of problems for cultural rights projects.
Culture constrains. Sure, it may liberate, too. But efforts to justify cultural rights are characteristically defective to the extent that they insist on a sunny liberation story while suppressing a grimmer constraint story. This is where my disagreement begins with Will Kymlicka, whom Okin addresses as her representative cultural-rights spokesperson.
Okin has made an interesting choice, for her fundamental normative commitments are closer to Kymlicka's than to those of many other cultural rights advocates. Kymlicka, after all, argues that cultural rights do not conflict with liberal theory, but are to be justified within it: when national or ethnic cultures assert power over their members that infringe on individual liberty, he is prepared to be just as critical as Okin. Thus their disagreement is less philosophical than empirical: Do women's rights conflicts have the gravity and frequency that Okin attributes to them, or is Kymlicka's relative inattention to them a good register of their marginality and ready resolvability?
I think the problems with cultural rights run much deeper--so deep that Okin's feminist critique seems strangely narrow. Consider one argument that Kymlicka makes in his fascinating book Multicultural Citizenship1: that national and ethnic groups protecting themselves from outsider encroachments do not necessarily thereby threaten the autonomy of insiders. Most often they only want to survive as groups. When that is their goal, he argues, liberal theory cannot object; indeed, it should welcome the provision of meaningful choices to group members. Kymlicka points the finger at religious communities, and away from national and ethnic communities, for seeking to protect their boundaries in ways that constrain members and thus offend liberal tenets; and he is ready to join Okin in objecting, on liberal grounds, when this occurs.2 So Kymlicka rules out only the intentional constriction of members' rights. When a group-preserving policy has unintended, even if predictable, side-effects that infringe individual rights, he suggests that threats to individual liberties are weak, indirect, and easier to explain away.
The elevation of intention to pivotal status here is troubling. Conscious intentions are unlikely to register the full trade-off between cultural preservation and group-member rights, especially when the liberal model of individual rights is absent or attenuated. (When the Supreme Court refuses to find racial discrimination without proof of intent, multicultural critics properly object: What about the strenuous support for white privilege contributed when whites invidiously but unintentionally undervalue and undercompensate people of color?) More seriously still, Kymlicka's focus on intention misses something important about culture, which, if it exists at all, systematically produces constraints that it then hides as habit, assumption, world-view.
Kymlicka's example of an unproblematic, because unintentional, restriction on group member rights is a native tribe that holds land in common. As Kymlicka notes, the tribe's ultimate purpose is to "provide protection against the economic and political power of the larger society to buy out or expropriate indigenous land."3 This purpose is extremely important: as the Dawes Act experiment demonstrated, converting reservation land to individual Indian ownership allowed white buyers and lessors to make confiscatory deals and then to move into the midst of Indian tribes, diversifying the cultural milieu in a way that was, and continues to be, devastating for tribal cultural continuity.4 What happens when, in contrast, land is held in common? According to Kymlicka, tribe members "have less ability to borrow money, since they have less alienable property to use as collateral." This consequence, he says, is a mere "by-product," which "does not place the group over and above the individual."
But the implications of tribal common land are much more complex. Typically it will mean that most tribe members are left not with less alienable property, but with none. Economically, this means not merely difficulty in finding collateral, but complete abstention from the surrounding market economy. And at this point Kymlicka's failure to take note of culture's constraints becomes visible: he has not mentioned the "purpose" of promoting cultural interdependence and cohesion by blocking--for people with acute material needs--the exit marked "sell or lease your land and move away from the tribe." We gain nothing by squabbling over intentions here: common ownership of land has not only fiscal but cultural effects; and the cultural effects include constraint. Seen in this way, tribal common land seems not much different than the common property system of the Canadian Hutterite Church, which, Kymlicka concludes, does meaningfully conflict with individual autonomy.5
Kymlicka's sunny story of culture focuses on the ways in which it creates meaning and thus the possibility of meaningful choice.6 Thus he regards national groups as inherently liberal if they determine membership by cultural rather than racial criteria: "It is one of the tests of a liberal conception of minority rights that it defines national membership in terms of integration into a cultural community, rather than descent."7 These are useful criteria, and do provide a conceptual zone of harmony between group rights and liberal values, but they are much more problematic in the real world than Kymlicka acknowledges. And an exclusive focus on women's rights will not fully illuminate the depth and complexity of the troubles. Consider the notorious Supreme Court case Martinez v. Santa Clara Pueblo.8 There the tribe was charged with discriminating on the basis of sex in its membership rules, which recognized as a tribe member the child of a male member who married outside the tribe, but not the child of a female member who did the same thing. The women's-rights focus on the case noted that the father of the first child was treated more favorably than the similarly situated mother of the second child. Seen from the children's perspective, however, the rule establishes membership based on descent, precisely what Kymlicka regards as illiberal.9 And seen from the perspective of a young female tribe member trying to decide upon a heterosexual partner, the rule creates strong incentives for marrying inside the tribe and powerful disincentives for marrying outside it. To be sure, she can opt for the latter, and we could say that the rule makes her choice more meaningful. But it seems only frank to add that she must choose between reward and punishment.
Cultural survival policies often focus not on women but on children. This is no accident: raising a child in a culture--any culture--implants not only the child in the culture but the culture in the child. Kymlicka does find violations of liberal norms when religious groups withdraw their children from public schools to prevent them from being "tempted to leave the sect and join the wider society."10 But this is what all cultural preservation policies that focus on children do. As Charles Taylor notes, Kymlicka's theory does not say why liberalism permits the preservation of threatened cultures not only for current members, but for "indefinite future
generations" as well.11 And as K. Anthony Appiah concludes, a program that designates future generations, on the basis of their descent, as the beneficiaries of cultural preservation also stipulates that they shall undergo the constraints of cultural implantation: "[I]t seems to me not at all clear that this aim is one that we can acknowledge while respecting the autonomy of future individuals."12
The family is a place where illiberal things happen not only because of male superordination over women, but because of adult superordination over children. This suggests that a thoroughgoing critique of the relative possibilities for the sunny and the grim stories of culture cannot be achieved with the sole resources of feminism. Cultural implantation is, moreover, inevitable: parents will always constrain their children merely by enculturating them. And this suggests that dominant cultures and ethnic and national cultures within them--and, indeed, feminism too--have some very hard questions in common.
1 Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford University Press, 1995).
2 Kymlicka, Multicultural Citizenship, pp. 35-44.
3 See Kymlicka, Multicultural Citizenship, pp. 43-44.
4 See D. S. Otis, The Dawes Act and the Allotment of Indian Lands (University of Oklahoma Press, 1973), especially pp. 93, 115, 119, and 124-55.
5 Kymlicka, Multicultural Citizenship, p. 161, discussing Hofer v. Hofer, 13 DLR (3d) 1 (1970).
6 Kymlicka, Multicultural Citizenship, pp. 82-93. In previous work, Kymlicka did acknowledge the range of problems associated with common land. See his Liberalism, Community, and Culture (Oxford: Oxford University Press, 1989), pp. 145-48, 197. But his more recent defense of cultural rights omits them.
7 Kymlicka, Multicultural Citizenship, p. 23.
8 436 U.S. 49, 98 S.Ct. 1670 (1977). The Supreme Court held that the tribe had sovereign immunity from suit under the Indian Civil Rights Act and dismissed all claims against the individual defendant on grounds that the ICRA did not create a private cause of action upon which the plaintiffs could sue.
9 The tribe's rule also prohibited the second child from ever being naturalized as a member of the tribe. 98 S.Ct. at 1674.
10 Kymlicka, Multicultural Citizenship, pp. 41-42.
11 Charles Taylor, "The Politics of Recognition," in Multiculturalism: Examining the Politics of Recognition, ed. Amy Gutmann (Princeton: Princeton University Press, 1994), pp. 40-41 n. 16.
12 K. Anthony Appiah, "Identity, Authenticity, Survival: Multicultural Societies and Social Reproduction," in Multiculturalism, ed. Gutmann, p. 157.