Add woman and stir : the applicability of the theories of distributive justice of Rawls and Dworkin to social, political and economic equality for women

Liberal theory depends for such coherence and consistency as it possesses upon the exclusion of human relationships from its theoretical structure. Classic social contract theory affirmed a contract between households, not individuals, each household being represented by its male head. This theoretical structure guaranteed a realm of private freedom to all (male) individuals and precluded the extension of legal principles to family life. To the extent that the premises of such theories are accepted, including the existence of a marital contract which pre-existed the social contract and eradicated the civil capacity of women, a foundation was available for a coherent regime of family law affirming masculine interests. The relegation of human relationships to the private sphere enabled the affirmation of autonomy and, independence. The legal relationship between the head of the household and his wife and children was proprietary, and it was this proprietary connection upon which the doctrine of family privacy depended. Contemporary liberal egalitarian theorists such as Rawls and Dworkin face very different problems. While women are now fully part of civil society and rank equally as citizens, neither has considered the full implications of that recognition for the distinction both wish to sustain between the public and private spheres. Rather, they have introduced a new theoretical distinction and argue that they have broken with the pre-suppositions of classic liberal theory in seeking to offer an account of justice which is political merely and devoid of wider epistemological and metaphysical assumptions. By arguing that their account of the individual is entirely political, applies only to the individual as citizen, they seek to distance themselves from the traditional liberal account of the individual as autonomous and independent and defeat communitarian claims that liberalism is hostile towards certain conceptions of the good life. The compartmentalization implied by such an account of justice, its explicit denial that roles other than that of citizen are relevant to equality, renders it irrelevant to women. It is argued that to the extent that women of every social class remain less advantaged than their male counterparts, the foundation of their inequality lies in the gender roles characteristic of our culture and the normative role these play in legal and political institutions. Both Dworkin and Rawls tacitly assume the male gender role characteristic of late capitalist society as normative. This renders the inequality of women invisible, characterizes it as a product of individual choices in work, leisure and consumption. To the extent that the theoretical individual is recast in gender neutral terms, compelling recognition of the fact that the 'private responsibilities' associated with the female gender role form the foundation for economic and social inequality, the distinction between public and private is collapsed and an account of the just family becomes essential. When an account of the just family is constructed, using the premises of egalitarian theory as the foundation, it becomes essential to extend ordinary legal principles to the family. This move, in turn, compels acknowledgment of the fact that, at least with respect to women and the family, the concrete tastes and preferences liberalism seeks to affirm have their roots in the inegalitarian attitudes it deems illegitimate.