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WINTER 1987 Hypatia A JOURNAL OF FemirAst SPECIAL I1iOop1Jy ISSUE Hypatia A JOURNAL OF Femipst Pliloopty Winte...

Author: Betty C. Safford | Sharon Bishop | Elizabeth Wolgast | Linda J. Krieger | Gale S. Baker | Paul Green | Marjorie Weinzweig | Nancy Fraser | Terry Winant | Sheila Ruth | Elizabeth Janeway | Harry Brod

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WINTER 1987

Hypatia A JOURNAL OF

FemirAst

SPECIAL

I1iOop1Jy

ISSUE


Femipst

Pliloopty

Winter 1987 Volume 2, Number 1

SPECIAL ISSUE: Philosophy and Women Symposium

edited by Betty C. Safford California State University, Fullerton

wasan Egyptianwomanphilosopher, Hypatia(Hy-pay-sha) mathematician,and astronomerwho lived in Alexandria from her birthin about 370 A.D. until her deathin 415. Shewastheleaderof theNeoplatonicSchoolin Alexandria andwas famousas an eloquentand inspiringteacher.The journalHypatiais namedin honorof this foresister.Her name remindsus that althoughmany of us are the first womenphilosophersin our schools,we are not, afterall, the first in history. Hypatia has its roots in the Society for Women in Philosophy,manyof whosemembershavefor yearsenvidevotedto feministphilosophy. sioneda regularpublication Hypatiais the realizationof that vision;it is intendedto andcommunicate manydifferentkindsof feminist encourage philosophizing.

Hypatia(ISSN0887-5367)is publishedby Hypatia,Inc., a taxexemptcorporation,which for statementsexpressedby authors.Hypatiawill publishtwo assumesno responsibility ratesfor 1986-87are: issuesin 1986,andthreeissuesin eachsuccessiveyear.Subscription Institutions,$40/year;Individuals,$20/year. Foreignordersadd postage:$5/year to Canada,Mexicoand overseassurface;$10/yearto overseasairmail.Singlecopieswill be A 40%discountis availableon bulkorders and$10(individuals). sold for $20(institutions) for classroomuse or bookstoresales. Life-timesubscriptionsare availableto donor subscribersfor $400. to the Editor,Hypatia,Southern Addressall editorialand businesscorrespondence IL 62026-1437.Noticeof nonreceiptof IllinoisUniversityat Edwardsville, Edwardsville, an issuemustbe sent withinfour weeksafter receiptof subsequentissue. Pleasenotify us of any changeof address;the Post Office does not forwardthirdclass mail. Copyright© 1987by Hypatia,Inc. All rightsreserved. Hypatia was first published in 1983 as a Special Issue of Women's Studies International

as vol. Forum,by PergamonPress.Thefirstthreeissuesof Hypatiaappearedrespectively 6, no. 6; vol. 7, no. 5; and vol. 8, no. 3 of Women's Studies International Forum. They

are availableas back issues from PergamonPress, MaxwellHouse, FairviewPark, Elmsford,NY 10523.

Editor MargaretA. Simons, Southern Illinois Universityat Edwardsville Assistant

Editors

John Balla Tamera Bryant Thoraya Halhoul

Editorial Assistants Kimberly Blankenship Florence Gillig

Editorial Board for Special Issue Gale S. Baker, Los Angeles, California Ann Garry, California State University, Los Angeles Marjorie Weinzweig, Los Angeles, California

Book Review Editor Jeffner Allen, Eastern Montana College

The Forum Editor Maria Lugones, Carleton College

Associate

Editors

Azizah al-Hibri (Editor 1982-84), New York Sandra Bartky, University of Illinois, Chicago Ann Garry, California State University, Los Angeles Sandra Harding, University of Delaware Helen Longino, Mills College Donna Serniak-Catudal, Randolph-Macon College

Advisory

Board

Elizabeth Beardsley, Temple University Simone de Beauvoir, France (1908-1986) Gertrude Ezorsky, Brooklyn College of City University of New York Elizabeth Flower, University of Pennsylvania Virginia Held, Graduate Center of City University of New York Graciella Hierro, Mexico Judith Jarvis Thompson, Massachusetts Institute of Technology Mary Mothersill, Barnard College Merrilee Salmon, University of Pittsburgh Anita Silvers, San Francisco State University

Editorial Board Kathryn Pyne Addelson, Smith College Jacqueline Anderson, Olive Harvey College, Chicago Asoka Bandarage, Brandeis University

Lorraine Code, Trent University Blanche Curry, Shaw College Elizabeth Eames, Southern Illinois University at Carbondale Susan Feathers, University of Pennsylvania Ann Ferguson, University of Massachusetts, Amherst Jane Flax, Howard University Nancy Fraser, Northwestern University Carol Gould, Steven's Institute of Technology Susan Griffin, Berkeley, California Donna Haraway, University of California, Santa Cruz Nancy Hartsock, University of Washington Hilda Hein, College of the Holy Cross Sarah Lucia Hoagland, Northeastern Illinois University Alison Jaggar, University of Cincinnati Elizabeth Janeway, New York Evelyn Fox Keller, Northeastern University Rhoda Kotzin, Michigan State University Lynda Lange, University of Alberta Linda Lopez McAlister, University of South Florida Patricia Mann, City College of New York Kathryn Morgan, University of Toronto Janice Moulton, Smith College Andree Nichola-McLaughlin, Medgar Evars College Linda Nicholson, State University of New York, Albany Susan Ray Peterson, New York Connie Crank Price, Tuskegee Institute Sara Ruddick, New School of Social Research Betty Safford, California State University, Fullerton Naomi Scheman, University of Minnesota Ruth Schwarz, University of Pennsylvania Elizabeth V. Spelman, Smith College Jacqueline M. Thomason, Los Angeles Nancy Tuana, University of Texas at Dallas Caroline Whitbeck, Massachusetts Institute of Technology Iris Young, Worcester Polytechnic Institute Jacqueline Zita, University of Minnesota

Winter, 1987 Volume 2, Number 1

contents Preface

v

Betty C. Safford

Introduction

1

Sharon Bishop

Connections and Guilt

7

Elizabeth Wolgast

Wrong Rights

25

Linda J. Krieger

Through a Glass Darkly: Paradigms of Equality and the Search for a Woman's Jurisprudence

45

Gale S. Baker

Is Equality Enough?

63

Paul Green

The Logic of Special Rights

67

Marjorie Weinzweig

Pregnancy Leave, Comparable Worth, and Concepts of Equality 71

Nancy Fraser

Women, Welfare and the Politics 103 Of Need Interpretation

Terry Winant

The Feminist Standpoint: A Matter of Language

123

Sheila Ruth

Bodies and Souls/Sex, Sin and the Senses in Patriarchy: A Study in Applied Dualism 149

Elizabeth Janeway

Improper Behavior: Imperative for Civilization

165

The New Men's Studies: From Feminist Theory to Gender Scholarship

179

Notes on Contributors

197

Announcements

199

Submission Guidelines

203

Harry Brod

preface The 1987 New Year has brought the excitement of beginning our second year of publication, but also the sadness of losing a friend. Just as we were going to press, we learned that Merrill Hintikka had died in her sleep in the early morning hours of New Year's Day after a brief illness. Born in California in 1939, Merrill attended Mills College and Stanford University, and taught at both these institutions before joining the philosophy faculty at Florida State University in 1978, where she became a faculty leader. At the time of her death she was serving her second term as President of the Faculty Senate. Merrill was a founding member of the Pacific Division of the Society for Women in Philosophy, and served on the American Philosophical Association's Committee on the Status of Women during the 1970's. She co-authored several works including, Investigating Wittgenstein, Philosophical Analysis: An Introduction to its Language and Techniques, and the APA's 1975 publication, Sexism in the Hiring Process. Feminist philosophers may remember Merrill best for her pioneering work with Sandra Harding in co-editing Discovering Reality. When Merrill and Sandra issued their call for feminist philosophy papers on "epistemology, metaphysics, methodology, and philosophy of science," they opened the way for explorations of gender bias at the hard core of the Western philosophical tradition. We are indebted to Merrill for her philosophical courage and foresight. We'll rememberher generosity and warmth. Our sympathy goes out to her family and many friends. In 1987 Hypatia will begin an expanded publication schedule, publishing three issues this year, and in coming years. The issues will continue to include papers received through general submissions, as well as papers on special topics assembled by guest editors begining with the current issue edited by Betty Safford with the assistance of Gale Baker, Ann Garry, and Marjorie Weinzweig. Forthcoming special issues include an issue on Feminist Perspectives on Science edited by Nancy Tuana, of the University of Texas at Dallas, and an issue on French Feminist Philosophy, edited by Sandra Bartky, of the University of Illinois at Chicago, and Nancy Fraser, of Northwestern University. The Hypatia Board recently named Linda Lopez McAlister, of the University of South Florida, guest editor for a special issue on the History of Women in Philosophy, and issued a call for proposals on Medical Ethics. For information on submitting a paper for the History issue, or a proposal to edit the issue on Medical Ethics, please consult the Submission Guidelines. We welcome suggestions of topics for other special issues as well. To meet our expanded publication schedule, Hypatia has launched a campaign for institutional support. The Sustaining Institutions Prov

hypatla gram will help provide operating funds for the journal, and enable participating institutions to address various objectives, such as curricular enhancement, public service, marketing, and educational equity. If you would like your institution to participate in this program supporting scholarly research in feminist philosophy, see the Announcements for further information, and contact the Hypatia Editor. Our successful first year of autonomous publication would not have been possible without the contributions of many exceptional individuals. Two such persons are Florence Gillig and Maureen Kinsella. Flo, a Records Management Consultant, generously contributed her expertise in devising a new subscription records management system for Hypatia, and then volunteered to help with the typing. Maureen, a photographer and Assistant Professor in the SIUE Art Department, volunteered to work on our design projects with her advanced graphic art students. The promotional poster, cover designs, and t-shirts they have created under her direction are a source of delight. All of us at the Hypatia editorial office would like to thank Flo and Maureen for all they've done. 1986 wouldn't have been nearly as productive, or as much fun, without them. M.A.S.

vi

betty c. safford Introduction An overview of the essays in the special edition of Hypatia, A Journal of Feminist Philosophy, Winter, 1987. This special edition comprises papers presented in Spring, 1985 to the fifteenth annual philosophy symposium at California State University, Fullerton. The four-day symand Women: The Past posium was entitled "Philosophy 25 Years and the Future."

This issue of Hypatia brings to a larger audience issues and ideas which first were presented to and discussed with attendees at the fifteenth annual philosophy symposium held in the spring of 1985 at California State University, Fullerton. 1984-85was our university's25th year and the four-day symposium-"Philosophy and Women: The Past 25 Years and the Future"-was dedicated to C.S.U.F. in honor of its silver anniversary. Speakers included not only philosophers but professionals in other fields whose work had shown serious consideration of philosophical issues concerning women and feminism. The editorial board for this special edition-Ann Garry, Marjorie Weinzweig, Gale Baker and Betty Safford-has been able to secure most of the papers for inclusion here. Two of the symposium presentations were followed by panels of students who addressed brief comments and questions to the speaker. We are pleased that two members of one of those panels prepared their contributions for this volume. In the first essay here, Sharon Bishop explores what she finds most interesting in the work of Carol Gilligan: the suggestions that "a different way of thinking about morality ... may help resolve some problems about the place of personal relationshipsand emotion in the moral life." Bishop believes that insufficient attention has been paid in modern moral theorizing to the strong personal connections involved in relationships between friends, lovers, marriage partners, parents and children. Taking such relations into account in moral deliberations has been considered inappropriate, but, Bishop argues, the connectedness which characterizes these relationships may be far more important in our moral lives than has been recognized. Modern thinking about morality, she claims has stressed principles and failed to articulate the Hypatia vol. 2, no. 1 (Winter 1987) ( by Betty Safford.

1

hypatla ways in which use of the principles it prescribes "can enable us to maintain enough connection with others so that we can get on with what we care about." She goes on to argue that certain forms of guilt which appear irrational or inexplicable in terms of familiar models of morality can be seen to be neither from a perspective which views personal connections as having special moral significance. A concern with human connections is also apparent in Elizabeth Wolgast's "Wrong Rights." She argues there that talk about rights presupposes an atomistic view of society according to which autonomous individuals-rights-holders-properly may expect "equal" treatment and may make claims against each other where that expectation is violated. While Wolgast agrees that a world which countenances rights is better than one which does not and that rights-talk serves humans well in some areas of our experience, she holds that a model of individuals and their rights is an improper one for addressing some injustices. One thing which she says makes the atomistic model improper in those cases is that there is no room in it for connections of responsibility or dependency-one is responsible for oneself but for no one else, and the position of a dependent who needs the care and concern of another cannot be shown in the model. Injustices for which the model does not work include, Wolgast believes, those which sometimes occur with regard to pregnancy and the workplace or with regard to whether abortion should or should not be sought or allowed. She offers evidence of how ubiquitous the atomistic model of society has become in contemporary Western thought, an account of why rights-talk has come to have such a hold on us, and urges us to discriminate between those cases in ethical, political and legal thinking where rights-talk is valuable and those where it is not. The series of papers by attorney Linda Krieger, the philosophy students Gale Baker and Paul Green who comment on Krieger's work, and philosopher-attorney Marjorie Weinzweig, all are concerned with questions about equality arising in controversies over pregnancy leaves or comparable worth. In "Through A Glass Darkly: Paradigms of Equality and the Search for a Woman's Jurisprudence," Krieger offers support for her contention that the feminist legal community is in the throes of a Kuhnian revolution concerning its long-held paradigm of equality as equal treatment. The influence of Carol Gilligan's work shows up again in Krieger's thinking, and Krieger credits Elizabeth Wolgast's book Equality and the Rights of Women (1980) with supplying an alternativeparadigm of equality which has made a full-fledged "revolution" possible. This new paradigm, Krieger claims, accommodates, "incorporates," women's differences from men with regard to pregnancy in such a way that it avoids the inability of the equal treat2

betty c. safford ment model to insure equality of opportunity and equality of effect. Gale Baker and Paul Green comment briefly on Krieger's paper. Baker argues that equality, even as equality of effect rather than as equality of treatment, might, were we able to obtain it, fall short of bringing about social justice. She argues that social justice should be our aim rather than getting for women equal shares of what men now have. Paul Green notes the importance in Krieger's work of the distinction between equal and special rights, and explores the distinction between the bivalent and traditional liberal views of equality and the justification for establishing special rights. He agrees that a right to treatment as an equal is morally superior to a right to equal treatment, but he believes there are still questions it is incumbent on the proponents of special rights to answer. Marjorie Weinzweig, in "Pregnancy Leave, Comparable Worth, and Concepts of Equality, briefly outlines opposing arguments with regard to current legal issues concerning pregnancy leave and pay equity. She then turns to the debate about 'equality' taking place among feminist scholars, including the feminist legal community to which Kriegerrefers: which concept of equality, if any, is appropriate in formulating feminist goals, or if none is, what alternative concept should take its place? Weinzweig argues that there is a common theme which runs through the positions of most of the contenders, a theme which involves the desegregation of the workplace, both public and private, a radical revaluation of the relation between work and the rest of life, and a new model of human happiness based on relational self-actualization. She contends that the misunderstood concept of androgyny can play a valuable role by permitting choice while we learn more about what significant differences, if any, there are between women and men. Nancy Fraser's essay, "Women, Welfare and the Politics of Need Interpretation," discusses the relation between the "coming welfare wars" (the imminent fiscal crisis she claims is facing the U.S. as well as all late-capitalist welfare states) and the feminization of poverty. Fraser points out that because these phenomena undoubtedly will be widespread and long-lasting, they increasingly will and should demand the attention of feminists. She warns us that the questions arising from them pose a serious dilemma: women now must have social-welfare benefits in order to survive, but the U.S. welfare system contributes to and institutionalizes the feminization of poverty. Fraser's clear and cogent arguments defend both her causal explanation of the problem and what she claims feminists must do in order to begin to resolve it. Fraser's aims and concerns and those of Terry Winant in their essays here differ. However, since Winant makes extensive use of Fraser's work, a prior reading of Fraser's paper is recommended. In "The 3

hypatia Feminist Standpoint: A Matter of Language," Winant confronts a contemporary feminist theoretical concern: the need to supply grounds for the claim that, even though there are important differences among women's lives, there is (or can be) a distinctively feminist standpoint. Winant argues that there are separate philosophical and political problems involved in the project, and that only with regard to the former is there a "unitary feminist stance." She examines works of Fraser and Nancy Hartsock, each of which, she claims involves an attempt to identify a common feminist discursive practice. Winant argues that the two attempts can be interpreted either as "near misses" or as successful contributions to the continuing project to create a feminist standpoint, and describes what she sees as attractive consequences for feminist theorists of the latter interpretation. Sheila Ruth decries the poverty of sexual language in Western patriarchal culture, and explains how the pervasive dichotomies-the dualisms-of patriarchycan be understood to have brought such a condition about. Dualism in patriarchy, Ruth argues, is a strategy for avoiding death. Sex, she claims, is equated with the body, the body with woman, woman with death; all three are elements of the concrete, and transcendence to the abstract is seen as a means by which they can be conquered and negated. Why, then, she asks, have men in patriarchal societies tended to glorify death, while women have tended to value life? Her suggestion is that, in general, women's experiencehas led them to identify the sacred with the concrete, the cyclical. But for men, who generally have identified the sacred with the abstract and transcendent, body-woman-death as mired in the concrete are to be despised, at the same time that death as the doorway to the transcendent and eternal is to be sought after. Ruth's concluding remarks remind us once again of the dangerous, paradoxical and life-destructive features of patriarchal consciousness. The essay of well-known feminist author Elizabeth Janeway is concerned with the power to define and how it is used to get members of a society to accept the rules of those in authority. The first thing people are inclined to do when they disapprove of a rule, she claims, is to break it, and breaking a rule is immediately labeled by the authorities as "improper behavior." Definitions and rules get changed in a society only with great difficulty, she argues, and it is still men in our society who have the power-and with it, the not-always-pleasant duty, she points out-to define. Janeway says that she is ready to praise improper behavior because it has the potential for showing those with the power to define when it is time to change definitions, to redefine. Harry Brod's paper asks for change on the part of feminists. In "The New Men's Studies: From Feminist Theory to Gender Scholarship," 4

betty safford he argues that feminist scholars should endorse the proliferation of men's studies, "though a men's studies of a kind decidedly different from traditional scholarship." Having falsely generalized "man as 'male' to man as 'human' we have, to our great loss," Brod claims, "obliterated the specificities of both men's and women's lives." He believes that in order to rid the generic 'man' of its power over us all, we must study man "as particular rather than as pseudo-generic," and he credits the achievements of women's studies with making possible the emergence of a new men's studies. His challenging and I think hopeinspiring essay provides an appropriate finale to this collection. I should like to thank the symposiasts and all those at California State University, Fullerton who helped to bring the symposium about. I want also to express my appreciation of the help and encouragement I have received from the other members of the editorial board for this edition and from Hypatia's editor, Margaret A. Simons.

5





sharon bishop Connections and Guilt Moral philosphy, in both the Kantian and Utilitarian traditions, has it as an ideal to provide a set of principles which dominate all other considerations and which will consistently resolve all moral problems. This is often taken to imply that guilt or remorse is irrational if it occurs in circumstancesin which one does ones duty but also harms others. This essay explores the possibility of giving up this ideal in favor of a more complex view of morality in which resolutions of conflict are worked out affectively rather than logically.

PJopular as well as philosophical and psychological presses have noted that men and women differ in moral capacity. In one tradition, women are the guardians of civilization. When they are present, men are more likely to keep their violent and gross impulses under control. They inspire men to make their surroundings more comfortable and beautiful. It is also often suggested that women are closer to nature and hence to what is really valuable. They are more likely than men to see that the prestige, money and success that men seek are false values. There is, however, a significant tradition according to which women are morally weaker than men. Women cannot resist temptation and they lead men to do wrong. Men, of course, have not always been able to resist successfully, but nonetheless they have been regarded as the only reliable source of impartialjustice. Women are, in Freud's words, "more often influenced in their judgments by feelings of affection or hostility" (1925, 257-58). Hume bases his argument that women have strict duties of chastity and modesty on the belief that women are more easily tempted than men (1740, 570-3). In our day, fears that women can't be impartial come up as they get con sidered for administrative and judicial posts. Where it is acknowledg ed that women can see what justice requires, there is often suspicion that they won't be able to administer or enforce it since they will be too swayed by their feelings. Underlying these views about the moral capacity of women, there are often beliefs about the emotional nature of women and their greater dependence on others. Most of the opinions I've alluded to above seem to result from life experience or the "wisdom of the poets." However, modern empirical Hypatia vol. 2, no. 1 (Winter 1987). © by Sharon Bishop.

7

hypatia studies by Piaget and Kohlberg, among others, seem to coincide with the view that women are less capable of impartiality and rule governed lives. From Piaget's work, it looks as if girls don't take much part in the kinds of rule governed games from which boys apparentlygain their mastery of competitive and cooperative rule governed activities. From Kohlberg's, it looks as if they don't separate themselves enough from conventional demands to be able to assess them critically. In any case, males apparently reach post conventional stages more often, while females remain concerned about being good according to some conventional standard. Carol Gilligan, in her book In a Different Voice, does not take direct issue with these results. That is, she, too, thinks that males and females differ with respect to how they understand and attempt to resolve moral problems. However, she shifts dramatically the tone about these differences. Where Piaget and Kohlberg conclude that females typically rank lower in moral development, Gilligan challenges their characterizations of the highest stages as inaccurate. She goes on to suggest that the moral voice she has found associated with women is, in some respects, more adequate. She observes that where males seem concerned about finding solutions to moral problems based on rights, females are concerned about maintaining connections between persons. She sees rights as " . . . dissolving natural bonds in support of individual claims ... " whereas what she calls 'responsibility' " . .. knits such claims into the fabric of relationship blurring the distinction between self and " other through the representation of their interdependence. ... (Gilligan 1982, 132). Whether or not a more adequate conception of morality can be worked out from reflection on gender differences, it is certain that the ways in which our moral repertoire helps us establish and maintain relations with one another have been neglected in modern moral philosophy. Instead, morality has been seen as sets of principles, in need of justification, but which can be ranked and used to resolve any moral problems that come up. There has been little concern with the special relationships we have as friends, lovers, marriage partners or parents. When these are taken up, they are often seen as examples of obligations that we get by our voluntary commitments. Note is not taken of the fact that these relations are characterized by strong personal connections between the persons involved. Moreover, it is not considered appropriate to take these relations into account when resolving moral problems. In this paper, I want to explore the possibility of making connections more central in our thinking about moral theory. I am not here interestedin whether there are the gender differences that Gilligan thinks 8

sharon bishop she has found, nor in whether the so-called differences could be accounted for as relatively insignificant byproducts of the different social worlds of males and females. What seems interesting to me are the suggestions of a different way of thinking about morality and the ways in which this may help resolve some problems about the place of personal relationships and emotion in the moral life. For those who regard moral philosophy as a self-reflective discipline this is a particularly important undertaking.

Kohlbergand the PhilosophicTraditions Kohlberg and Gilligan agree that the highest stages of moral development include a capacity to be critical of conventional standards. Thus neither of them would be willing to equate moral maturity with the kind of relativism that identifies moral standards with a given society's conventions. Both seem to regard this as a kind of adolescent view. Kohlberg, however, suggests that the highest post-conventional stage also requires the adoption of universal standards which are regarded as existing prior to social legislation. Common philosophic interpretations of such standards typically involve the notion that they are self-evidently true or can be derived from some definition or analysis that can be defended as true. In either case, the standards are regarded as true and the characteristicof truth passes on to the decisions. Moral agents who care about justifying their beliefs become seekers after these truths. Thus the philosophers who find the principles and their justifications provide moral agents with what they need to answer their own doubts about whether their actions are legitimate. Typically also, standards are taken to provide a set of principles that can in theory determineanswers to all moral problems. Moreover, these principles dominate non-moral considerations. That is, conflicts between the demands of morality and family considerations are always to be resolved in favor of morality, and likewise with conflicts between morality and the requirements of creativity. An adequate set of principles will be consistent in that it does not imply that the same act is both right and wrong. Nor, given a morally significant situation, will such a set imply that two incompatible acts are both right; for example, that it would be right for a woman to have an abortion or not to have an abortion. In short, sets of principles are set up in such a way that uncertainties arise only from doubts about how the principles apply in a given instance not from the possibility that the principles are indeterminate in such cases. The principles, then, are seen as the proper devices to use for resolving moral problems. They are structured so they don't put agents in impossible situations where in 9

hypatla acting rightly they also act wrongly. And if something of moral values is at stake, they do not imply that two incompatible acts are both right. When this model is accepted, agents can rest comfortably knowing that their moral lives are, in principle, smooth even if they feel uncertain or conflicted. This smoothness in the system also has implications for the affective lives of all those who regardtheir actions as justified by such judgments. In doing what is right, an agent is doing the act that is required. Hence it would be irrational for her to feel guilt or remorse, for were there any rational base for guilt or remorse over a particular act, the agent would have to be operating from a principle or set of them which allows the same act to be both right and wrong or one on which two incompatible acts are both right. If this were to occur, the principle or set would be shown inadequate. In any case, so long as agents believe they are acting rightly, they can be confident that any guilt or remorse they feel should be dismissed as irrational. Where they believe that they have done as they should, they will regardany guilt they happen to experience as something to be gotten over privately or perhaps with a friend or analyst, but they will not think that reparative acts or forgiveness are appropriate. Kohlberg's own understanding of the way morality is independent of social conventions differs in that he regards moral judges as constructors of universal rights from a formal procedure and not as seekers of moral truths. Following Rawls, Kohlberg holds that highest stage moral agents regard the rules expressing rights as binding since they believe that all who are rational would acknowledge them. It is this unanimous agreement under conditions that insure impartial consideration that carriesthe burden of justification in the highest stage. Justification, then, is a process of self-reflection, and in so far as moral philosophy attempts to determine which principles, etc. are justified, it is a self-reflective discipline. This radically different view of justification is, however, combined with the idea that moral considerations rank higher than others and that agreement would be reached on ordering the rules. Agreement on the rules carries through to agreement on the right action in concrete situations. The system that gets constructed, then, retains the hierarchical ordering and dominance of moral considerations, and it has similar psychological consequences. That is, so long as moral agents act in conformity with the rules, they will have no reason to feel regret for what they have done. Guilt or remorse could only be seen as irrational reactions. Post-conventional morality includes universal principles of justice and human rights. Where human rights are at issue, what gets stressed, in the philosophic tradition, are the claims that people are entitled 10

sharon bishop to make on one another, not the appreciative, affirming gestures that create affective bonds, not the benefits people may want to bestow or the favors that they may like doing for one another. Many rights function to protect against intrusion, and, in effect, set up boundaries between persons. They tell me both what I may legitimately demand of you, and what you may legitimately demand of me. While I know that I must not intrude on you, I am also assured that I may not be required to give without end to you. The construction that provides the core of moral reasoning is designed to find the limits between persons, to determine what we may ask of one another on the basis of need and what we have coming on the basis of desert or merit. But the tradition has been silent regardingthe ways in which a system of rights can enable us to maintain enough connection with others so that we can get on with what we care about, all the time depending on people we don't know to give us enough room. Little attention has been paid to the ways in which rights, by setting limits between persons, set the stage for the spontaneous acts of affection and appreciative gestures that we would prefer to neurotic and destructive tendencies in our personal relations.

A DifferentPictureof Morality Moral Choices and the Future The picture of moral thinking that emerges from Gilligan's work is different from the above in several respects. First, she finds significant numbers, most often females, who see moral problems as situations that call for finding some way of maintaining connections between persons. This contrasts with Kohlberg's view that moral problems are primarily occasions for deciding which claims are legitimate. For example, in discussing Kohlberg's Heinz dilemma, she describes a young boy's attempt to resolve Heinz's problem of whether to steal a drug in order to save his wife's life. The boy, constructing the problem as a conflict between the values of property and life, considers life more important. At the same time, he recognizes the demands of the law, but believes a judge would see that Heinz should be given a light sentence since the law can't be exactly right about every case. Amy, by contrast, seems to see the problem as a matter of how to regardeveryone's needs. Though she thinks Heinz should look for some way to solve his problem without stealing, she seems to think Heinz should avoid stealing the drug, not because doing so violates the law, but because it might jeopardize his relationship with his wife. Gilligan interprets her responses as indicating that she constructs moral problems as occasions when interests come into conflict but in which the 11

hypatla aim is to meet everyone's needs, not to decide whose demands are legitimate and whose not. Perhaps Amy sees the problem as a mediator would, rather than as a judge would in an adversarial legal system. Though the kinds of examples that have often been discussed in moral philosophy lead those of us who study it to look at them as conflicts between competing claims in which one party must win and the other lose, it isn't always necessary to look at them in this way. For example, where there is a conflict between keeping a promise and our duty of mutual aid, it looks as if either the promise will have to be broken or the aid foregone. And that is indeed the case, but morality does not turn off once one decides which claim is more pressing at the moment. There may be prospects for compensation or ways of making up for broken promises. Every parent must be familiar with having to break a promise to a child because some project has taken longer than he or she anticipated. A child in such a situation may be inconsolable, but she will take away a different message if her parent says, "I'm sorry, we can't go to the beach as I promised, but I'll make it up to you," versus "I'm sorry we can't go to the beach because my obligations at work overridethe obligation I have from my promise to you (end discussion)." In fact, it is likely that the child whose parent explicitly makes up for the broken promises will take them more seriously than the child who learns that the discussion is over as soon as it's decided which of the conflicting claims ought to be met. When a question over whether to keep a promise is nested in a larger context in which the promise, in some sense, does not lose its binding force even though it will not be kept, one starts to focus on the ways in which a morally binding consideration can be seen as part of a network of moral considerations through which over time everyone's claims can be addressed. Of course, that will not always be possible, but, in real life, there may be more opportunities than moral philosophy suggests for reconstructing situations, offering compensation and mediating settlements. If Gilligan and others are right about the different life experiencesof males and females, it would not be surprising if females are more inclined than males to see prospects of acknowledging everyone's claims over time. Secondly, there seem to be differences in the content of the moral thinking of males and females. Where males often seem to resolve moral problems by appeal to claims based on rights or fairness, females seem to be concerned with whether their actions hurt others or whether they are being selfish or irresponsible. No data regarding an abortion dilemma are available on males, but we are all familiar with the construction of the public debate which pits the mother's right to determine her future against the right to life of the unborn. As the debate is acted out now, there is a sense that one or the other right must dominate; 12

sharon bishop and that the resolution of dilemmas over abortion awaits determination of which right is dominant. When the debate is construed in this way, the effort seems to be to find some answer that will either make abortion all right or not at all right. This outcome fits with the demands of traditional moral philosophies that attempt to state and order justified principles, but it hardly seems designed to help resolve the debate and violence that is developing now. When Gilligan looked at the thinking of some women going through abortion decisions, she found other kinds of concern. The women began by wondering how they could survive were they to become mothers and observed that they had responsibilities to take care of themselves. They became distrubed that it was irresponsible not to have the child since it would not have a chance unless they completed the pregnancy. Finally, they often arrived at a position in which they incorporated both sets of responsibilities, mentioning that they realized that there were questions of responsibility to the child beyond merely bringing it into the world, of taking care of it and providing it with what it needed to flourish. At the same time, they recognized responsibilities for their own personal development. From this position a woman might decide in either direction, but it is possible that no matter what she does she will have a lingering sense that she had a responsibility she let drop. This sense may well leave her feeling regret over her own missed opportunities in case she bears the child or remorse/guilt over the unborn child should she abort. Traditional moral philosophy encourages us to freeze our examination of moral thinking on the moment of choice. The agents, in these cases, would be seen as accepting values that conflict, an indication to moral philosophers that they haven't properly ordered their thinking or that they have the misfortune to accept a set of values that give contradictory pronouncements. The prospect that people may have ongoing responsibilities which do not cancel out gets hidden by the contemporary construction of abortion decisions as involving conflicts between rights. Viewing ourselves as having sets of responsibilities that may conflict or that don't harmonize perfectly may be a more accurate reflection of our actual moral lives than the picture drawn in the main philosophic traditions. People are not just left hanging in these conflicts. Our moral repertoire includes ways of dealing with them over time. A woman who is disturbed at ending fetal life does not have to remain forever guilty because she chose an abortion. Although it does not make much sense to appeal to pardons or forgiveness as ways out of her guilt or remorse, we often overlook the ways in which redemption can serve as a way of transforming persons in impossible moral situations. In fact, 13

hypatla Gilligan's subjects often went through serious personal crises in connection with their abortion decisions. Some were led to rethink their lives. As a result, they became more committed to their own development, to future children they might have or to children and husbands they already had. These experiences of renewal and growth include acknowledgement that something of value was lost as a result of one's own actions. The increased seriousness about one's own life and one's relationships with others is understood as connected to what was lost or destroyed and can be experienced as redeeming. The new life also remains tied to the past by the specificity of the agent's commitments. If at some level a woman feels that she shouldn't have had an abortion, she may see her efforts toward self development as making it possible for her to be a mother under better conditions, or to carry out commitments she feels to children to whom she's already attached, or even that it keeps her from failing in what she would regardas responsibilities to an actual living child. Dirty hands phenomena can be analyzed in a similar manner. Episodes which involve dirty hands seem most prevalent in political situations. Typically "dirty hands" involve a politician's belief that he cannot achieve some good end without soiling his hands by taking tainted money, violating a promise or treaty, lying to the public, etc. I have in mind here cases where there really is some very worthy end and it really is necessary to compromise oneself to achieve it. Philosophers have handled this phenomenon in various ways; somefor example, utilitarians-would deny that there is a real conflict, arguing that if the compromise is really necessary the obligation to achieve the good end is all that remains. I suspect that we prefer having politicians who have the capacity to dirty their hands, but who also have the capacity to recognize and acknowledge that they have done wrong, and that this acknowledgement transforms them so that they take their duties more seriously. We might also prefer that they have the capacity to make compensatory gestures or at least to acknowledge the complexities of the decisions they took in their memoirs. Truman, for example, never expressed publicly, so far as I know, any regrets over the tragic results of his decision to use atomic weapons. I move here to talking about what we, as outsiders, might want with respect to dirty hands phenomena because I think this suggests that there are general reasons for us to want in one another the capacity to make difficult, but necessary, decisions even while we acknowledge that people are harmed and values compromised. Redemption is not merely something that transforms the agent and relieves her of guilt, it also gives evidence that a person takes the lives and interests of others seriously and feels badly when he or she has to do something that injures them. 14

sharon bishop It is also worth considering that the public outcry over abortion results partly from each side's belief that if they aren't right, they're wrong. It may particularly rankle to feel sensitive about fetal life and to be told that one's way of understanding the moral significance of abortion is wrong. It hits even closer to home to be told that, virtually regardless of the circumstance, you must carry a fetus to term since not doing so would result in the fetus's death, which is unacceptable. When moral problems are seen as occasions for making decisions which are correct and which dominate over any alternative, there is little opportunity for parties on both sides to see their construction as a valuable way of proceeding. We do not, as a social group, look for ways of expressing our, not so easily, harmonized commitments regarding human life and personal responsibility. Moreover, when the debate is seen in this way there is little opportunity for the individuals who make choices about whetherto bear a child to express their ambivalence over the choice. So long as we regard our choices as determined by principles that dominate all others, we are hard pressed to regard conflicting feelings as anything but irrational. I have been suggesting that it is possible to see the women in Gilligan's study as talking about responsibility, instead of rights, because they typically construe moral circumstances as occasions when, because several commitments or claims all press for response at the same time, the problem is to work out how best to meet as many of them as possible over time. Another reading that would be worth exploring is that they are concerned about what it would be responsible for them to do. Kohlberg comments that females are more often concerned about being seen as good persons or about being disapproved of by others. They may, however, be more involved with the kind of person they are or evidence themselves as being rather than with whether each explicit act is right. The point here is not that they are motiviated by the desire to appear good or to avoid doing wrong, but that the morality they operate from may be more nearly like what have been called shame moralities than guilt moralities. In shame moralities, the focus is on what kinds of persons agents are rather than directly on what kinds of acts they perform. People who act wrongly show themselves to be shameful persons. Gilligan's work, then, raises the prospect that the moralities we operate with on a day to day basis may feature issues about what we show ourselves to be like more prominently than modern moral philosophy suggests. When the women in Gilligan's study talk about selfishness, they seem to be talking about the kinds of people they are afraid they might be, rather than about whether the act they are contemplating is right or wrong. In Rawls' theory, the kind of person one 15

hypatla should wish to be will be constrained by the principles of right action. These latter principles are to be settled on first; once these are known, it is possible to know what kind of person it is worth being. It may be reasonable enough to accept Rawls' picture of how we need to reconstruct our justificatory processes, while at the same time acknowledging that in ordinary moral thinking our concerns may be more directly over whether the acts we are contemplating should be interpreted as showing our selfishness or irresponsibility, or toughness or insensitivity. However, these possibilities need more exploration than they can receive here. Early Guilt So far I have suggested that the traditional philosophical picture of morality as a set of ordered principles represents our moral repertoire in a distorted way, and that focusing on moral capacity as a whole helps make sense of how we respond to ongoing, conflicting responsibilities. In this section, I want to consider the analysis of guilt most consistent with the philosophical tradition and suggest that there is another kind of guilt associated with concern for others and connectedness or attachment. This latter kind of guilt helps make sense of various moral phenomena that the philosophic tradition handles only awkwardly if at all. Discussions of moral guilt do not have a central place in modern moral philosophy. When it is talked about most plausibly, those who suffer from it feel badly about themselves as a consequence of believing they have done wrong. If their capacity for guilt is well developed, they will also experience wishes to make reparationfor what they believe they've done and they may feel more tolerant toward others who have committed similar wrongs. (See Rawls 1971, 472-79.) Although Rawls uses love and attachment to caretakers and friends to explain how we come to feel attached to the principles that define wrongdoing, what he calls "principled guilt" (moral guilt proper?) can only be experienced when a person believes he has violated one of the principles of right action or when he has ideals about the love of humankind that he thinks he has broken. I take Rawls to be expressing the view that completely developed moral guilt is always mediated by commitment to principles that are understood as regulating human cooperative ventures underlined by ideals of freedom and equality. In what follows, I want to outline a sense of guilt that is not mediated by principles and to suggest that there are a variety of moral phenomena that are better understood on the hypothesis that there is moral guilt that arises directly from failures of concern which break connections between persons. Whereas moral development in the philosophical tradition can be seen 16

sharon bishop as development along lines that create affective ties to principles of right and justice, in contrast both attachment theorists and object relations theorists suggest a line of development that leads to the capacity to be concerned for others, to feel guilt and make reparations when we harbor destructive impulses. Theorists like Bowlby (1969) and Mahler (1975) have argued that breaking attachments between young children and their primary caretakers causes serious disturbances. Children who were taken away from their parents protested and fretted before becoming depressed and subdued. Children who have had successful attachments can form new ones, but they still go through a period of mourning the loss of the person they have become attached to. The attachment means more than that one gets fed and clothed; persons have an autonomous disposition to connect with one another, and when children fail to connect severe disturbance results. When adults fail, they too are likely to suffer in one way or another.The upshot is that we are important to one another not just because we provide food or freshly laundered shirts, but because to develop and maintain reasonably good spirits we need one another's presence and attention. Freud makes a similar point saying, " ... in the last resort we must begin to love in order that we may not fall ill, and must fall ill if, in consequence of frustration, we cannot love" (Freud 1914, 66). According to attachment theory, human infants are not psychologically distinct. They begin to construct a sense of themselves via exchanges with early caretakers. The content and character of the sense of self depends on the quality of these exchanges. As infants construct a sense of themselves, they also develop a sense of their caretaker to whom they become passionately attached. Object relations theorists claim that children recognize that their impulses toward this caretaker are destructive. It is as if the infant doesn't know when to stop taking what its caretaker has to offer. At the very least the infant's behavior is ruthless and unconcerned. An infant whose psychological development has been healthy will begin to show concern about its impulses as it begins to see its caretaker as separate. It will also seek reparation or restitution. When things go well, it will learn that its impulses did no serious damage and that its offer of restitution is accepted. Under these conditions, the infant develops the capacity to take responsibility for its impulses. Simultaneously, it develops interactive capacities that help it repair ruptures in attachments. Much of this is inevitably hypothetical construction, but it makes different sense of the claim that humans are social animals. It is not merely that we seek society, but, literally, that and who we are is something we construct out of a social system from which we are not distinct. Quite early the infant develops a serious attachment to its caretaker. Apparently the course 17

hypatla of development of this connection has a great deal to do with the quality of concern this child will be able to develop for others and its capacity to feel guilt over breaches in concern. What interests me in these theories about early guilt is that it seems to arise directly in response to impulses to harm someone who is loved (albeit in a very rudimentary, but nonetheless passionate, way). At this stage (Winnicott suggests that it may be as early as six months), there is no question of the infant wishing to gain the approval of its parent by abiding by his prohibitions. Its behavior and mood are not mediated by standards. Rather they arise out of recognition that the other is separate, that she may be harmed by its impulses. These feelings of guilt are different from the principled guilt described by Rawls, in that they are not mediated by principles, i.e., they do not arise over an agent's belief that he has violated some universal principle of right. They arise out of connections and relationships that people establish and because of the possibility that the infant believes that she may injure the person to whom she is attached. They have to do with the way people are valued and connected in attachments. I turn now to some of the ways this sense of guilt accounts for moral phenomena that seem problematic in moral philosophy as traditionally conceived: 1. Interested persons would be hard pressed to find discussions of friendship or intimacy in the literature of modern moral philosophy. Indeed, those relations have apparently not been thought of as moral relations at all. Morality, moral philosophers hold, tells us what our duties and obligations are. We have duties as a result of being human and having a capacity to be moral. For example, we ought to avoid harming others or defrauding or coercing them, since these are minimal requirements for mutual association and cooperation. That we should not treat one another solely as means to our own ends is necessary for what we think of as human association. We get obligations by making commitments consistent with the requirements of morality, but the obligations arise from our voluntary commitments, not from the nature of the relationships we find ourselves involved in. I may have obligations to my friends, but only because I made a promise or created legitimate expectations. That a person is my friend has, on the face of it, no special moral significance. Guilt proper attaches to the violations of principle involved when I don't keep my promises or tell lies, not at all to the rupture in relations caused by my lies. Rawls apparently treats friendship in this way, but he tries to account for the felt oddity that lies to friends have no more moral significance than lies to our fellows in society. He regards friendship as a natural tie which he distinguishes from the moral ties that bind all of us who 18

sharon bishop live in and benefit from a scheme of social cooperation. He notes that feelings of guilt and indignation are more intense when friendship or intimacy are involved. He comments that " . . . granting that this heightening is appropriate, it follows that violations of these natural ties are wrongs" (Rawls 1971, 475). He goes on to say that rational feelings of guilt imply fault and that greater feelings of guilt imply greater fault; thus " . . . breach of trust and the betrayal of friendships ... are especially forbidden" (Ibid). Violations of duty are always wrong, but on Rawls' view they will be worse where friendship is involved. He remarksthat this consideration is relevantwhen one is working out the ordering of moral principles. Just how this might work is unclear, but we can imagine that persons in the original position will have among their general knowledge of human beings that they are, as a matter of fact, particularly disturbed when their friends treat them badly, and that they tend to feel particularly guilty when they betray friendships. Thus there is reason to believe that they will rank violations of (general) duty and obligation to friends higher than violations to people they merely share society with. First, one has to ask whether this really is a truth about humans generally, or whether it even makes sense to make such a claim. In China and Russia, particularly the former, it appears that efforts have been made to reverse this ordering, encouraging citizens to rank the "good of society" over family and friends. It is also questionable whether it is sensible to try to formulate general psychological principles of this sort. Suppose one grows up in conditions of social upheaval and feels ties to a new order which one recognizes as revolutionary and extremely difficult to maintain. Isn't it likely that affective ties in such a culture will be based, at least for many people, on shared commitments to the revolution-just as friendships in our not so distant past formed among those who were eager and willing to protest U.S. military policy in Vietnam; or just as friendships now form around commitments to feminist principles. It is also difficult to see any other basis in Rawls' scheme for the intense feelings associated with betrayal of friends. When Rawls suggests that we grant that these feelings of greater intensity are appropriate, on what may we base the judgment that they are? Given Rawls' general commitment to explaining the source of our moral feelings so that we may understand the rational basis of them, this is a glaring ommission. This, however, is characteristic of the way these special relationships are handled in moral philosophy. They are not looked at in their own right as moral relations nor are they examined to help illuminate the more affective sides of narrowly defined moral capacity. We need to think about the ways in which what are duties 19

hypatia and obligations in the philosophic tradition are similar to and different from what we feel as compelling or binding between friends. Feeling compelled in these relations does not seem related to beliefs that friends ought to be treated in certain ways; rather it seems associated with the idea/sense that certain attitudes and dispositions are constitutive of these relations. Failures to maintain affectionate attitudes, allowing anger and hatred to overwhelm love, and failures to act in ways that one sees as expressive of these attitudes are all indications that the relationship has been ruptured in some way, and that something needs to be done to bring it back together. Until it is, the parties involved are likely to feel intense betrayal or guilt. What they are reacting to, on this account, is the break in the connection between them. 2. There are situations in which what would normally be taken as a violation of moral principle seems to call for a similar analysis. Consider, e.g., someone who has been accused of treason. There may be any number of principles that a traitor violates in selling secrets to the other side; she has doubtless told lies, stolen materials that were not hers, perhaps aided a relatively less just society, and so on. But, these violations do not seem to account for the intense reactions that people have to treason. A nice illustration of this is presented in the play An Englishman Abroad, by Allen Bennett. Guy Burgess has spied for the Soviets and is living in Russia having fled England to escape arrest. Mrs. Brown visits him in his flat in Moscow. As they settle into a conversation, he recalls some lovely things about England and observes that he loves London and he loves England, but that he doesn't know what it is to love his country. Shortly after this reverie, she introduces questions about what he has done, wondering how he could have spied and now act as if it were no more than an ordinary misdemeanor. She asks that he tell her about it saying, "I can't muster much moralityonly you pissed in our soup and we drank it. I just want to know why?" He responds to her question by saying that at the time he thought it was the right thing to do. On one reading of this scene, Mrs. Brown is voicing some kind of non-moral objection to what he has done. Perhaps she detests people who betray their country. On another reading she protests the betrayal because it is evidence that he lacks affections fellow countrymen presume upon. It means that their relationship cannot develop; something has to happen to get them over the disconnection. He tries to clear things up for her by saying that he thought he was doing right at the time, but he doesn't press that or explain why he thought so. What is more telling is his earlier admission that he doesn't understand what it is to love his country. It is just this failure on his part that prevented him from realizing what his actions might mean to 20

sharon bishop Englishmen generally, but particularly to those who knew him and expected him to love his country. Generally there are lots of reasons for not loving one's country, but none of these are developed for Burgess. He just doesn't understand it. As a result, he can't experience guilt based on actions that betray the people who presume upon his love. Should he change his mind about the rightness of his action, he may experience guilt over whatever he now thinks was wrong about it, but unless he comes to understand enough about love from Mrs. Brown's questions, he can't experience guilt over what he has done to his countrymen. 3. The idea that moral guilt can arise because someone has thought or done something which damages a connection helps us to understand some occasions for guilt that otherwise seem incomprehensible or irrational. It is common enough for people to want to share good fortune or even to refuse undeserved benefits for themselves, but it seems odd for people to feel guilty when, for example, they survive a tragedy and others they are connected to did not. Siblings, for example, may feel guilt if a brother or sister dies even though they had nothing to do with it. Concentration camp victims report feeling guilty about surviving when family members did not. I am not talking about those who feel guilt because they undermined someone else's chances, but those who received special favors or who survived simply because they were still living when the camps were liberated. One interpretation of these responses is that people who feel connected, as siblings might, do not regard themselves as deserving better than those to whom they are bound, and hence feel uncomfortable accepting benefits and avoiding miseries that their fellows go through. Although feeling guilty in these cases cannot be understood as acknowledgement of wrongdoing, it can be a way of expressing connectedness. 4. Once we begin to notice the significance of connectedness between persons in the moral life, it is possible to make sense of some backward looking feelings that utilitarians have a hard time accounting for. For theorists who see moral requirements as dependent solely on future consequences, it seems impossible to see feelings of regret or remorse as reasonable. Likewise, it is impossible to understand guilt over things you had no control over. When connectedness is regarded as significant, regret and remorse can be seen as reparative responses. They signal that one wishes things had been different. The parent who realizes that she was not available to her children because of a drinking problem and who responds to that by noting there is nothing she can do about it now has a very different attitude to the past than one who acknowledges her unavailability and her regret over it. The second parent sees the past differently, apparently accepts her 21

hypatla responsibility for it and expresses a wish that things had been different. The prospects for that parent and her child to form a new bond are likely to be dramatically different from the first parent, in as much as guilt and regret set the stage for repair of the rupture in the relationship. Of course, this mother has not met her obligations as a parent, but that is less likely to figure with her children than their sense that they wanted her and she was not there. Her acknowledgement of her failure to be present for them indicates her realization of their wish for connection with her, and her eagerness to restore the connection that her unavailability spoiled. Philosophers committed to the conception of morality expressed in the modern tradition will wonder why this capacity for non-mediated guilt should be classified as part of our moral capacity. They may even argue that it should not be considered guilt at all since it does not include the judgment that one has violated a moral principle that is justifiable. There are several reasons for wanting to expand the traditional conception of morality in this way. First, the guilt that I have describedseems to involve a range of responses that are commonly taken to be moral, e.g., the recognition that we may have harmed someone or wished to destroy something that we care about, acceptance of responsibility for that and the wish to make reparation for it. Secondly, relationships in which non-mediated guilt figures prominently are deeply important in human life as we know it. Finally, connectedness may be far more important in our moral lives than has been articulated. So far we are more familiar with it in the breach than the observance. For example, sometimes criminal behavior is talked about as if it breaks connections between the criminal and society. He or she is required to repair the break by paying an appropriate debt to society. Often the level of that debt is adjusted by judgments about whether the criminal shows remorse or otherwise indicates that now they would not take advantage of others. As long as people do what morality requires, one doesn't notice that it lays down the conditions under which people can establish connections as well as provides ways of responding when they've been broken. It should be evident that I think that what we call personal relations are moral relations and that what characterizes them is connectedness.

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references Bowlby, John. 1969. Attachment. New York: Basic Books. Freud, Sigmund. 1914. On narcissism: An introduction. In General psychological theory. New York: Collier Books. -. 1925. Some psychical consequences of the anatomical distinction between the sexes. In Standard Edition. Vol. XIX. London: Hogarth Press. Gilligan, Carol. 1982. In a different voice. Cambridge: Harvard University Press. Hume, David. 1740. Treatise on human nature, Selby-Bigge edition, 1880. Oxford: Clarendon Press. Klein, Melanie. 1975. Love, guilt and reparation and other essays, 1921-45. London: Hogarth Press. Kohlberg, Lawrence. 1981. Essays in moral psychology; Volume 1, The philosophy of moral development. New York: Harper & Row. Mahler, M., F. Pine, and A. Bergman. 1975. The psychological birth of the human infant. New York: Basic Books. Rawls, John. 1971. A theory of justice. Cambridge: Harvard University Press. Winnicott, David. 1958. Psychoanalysis and the sense of guilt. In Psychoanalysis and contemporarythought, ed. John D. Sutherland. London: Hogarth Press.

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elizabeth wolgast Wrong Rights An atomistic model of society leads us to address injustices in terms of individual rights, but rights are curious possessions and don't always give the protection that's needed. Examples are patient's rights, children's rights and a fetus's right to life, all of which go wrong because they assume that the subjects are independent and autonomous. This assumption often fails. Rights work where people are in a position to press them; for others they give only a caricature of justice.

T he concept of individual rights which derives from an atomistic view of society gives us a way of looking at wrongs. It is a conceptual grid, a schema, a language which both gives us a sense of how a wrong is wrong and points the way to address it. Though powerful and useful, the terminology is unfitted to some of the uses we make of it. It is capable of binding us, stereotyping our reasoning and leading to remedies that are grotesque. Our commitment to this language is deep all the same. In this paper I examine both its anomalies and the source of its fascination. / Rights are often spoken of in the language in which we speak of possessions. They are, Richard Wasserstrom writes, "distinctive moral 'commodities"' (1979, 48). H. L. A. Hart spells out the metaphor in this way: Rights are typically conceived of as possessed or owned by or belonging to individuals, and these expressions reflect the conception of moral rules as not only prescribing conduct but as forming a kind of moral property of individuals to which they are as individuals entitled; only when rules are conceived in this way can we speak of rights and wrongs as well as right and wrong actions. (1979, 19) Conceiving of rights as moral property and as belonging to individuals the way property does is important among the implications of speaking of rights. It focuses attention upon the person to whom something Hypatia vol. 2, no. 1 (Winter 1987). ( by Elizabeth Wolgast.

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hypatla is due, rather than on the misdeeds of the one who offends. It says something positive, that a right exists, and doesn't merely condemn an action or the person doing it. It is as if we had here a moral metaphysics. What is it that exists? Can one prove that it does? I think we are complacent in thinking that all the rights we invoke can't be denied any more than the law of gravitation. The point of having a right is that having it guarantees a benefit to the possessor. What is it that the possessor of a right holds? David Lyons explains: When A in particular, holds a certain right against B, A is a claimant against B. A "claimant" is one empowered to press or waive a claim against someone with a corresponding duty or obligation. He can, if he wishes, release the other from his obligation and cancel it, or he can insist upon its performance. ... A claimant is thus one to whom the performance of a duty or obligation is owed-he is the one who holds the claim against the other and who is entitled to administer the claim as he chooses. (1979, 60) Lyons provides an important feature of the language of rights, namely, the power it puts in the hands of the owner to press his right against someone or some agency. Rights are there to be claimed-asserted, demanded, pressed-or, on the other hand, waived.' What the claimant is entitled to press for is no doubt a benefit, and rights are generally associated with benefits, if only the benefit of being able to do something one doesn't want to do. The connection with benefit is seen if we ask why someone should claim something if it doesn't benefit him, why should there be a right which gives him no advantage? Yet what distinguishes a right from a benefit is that what is your right may or may not be claimed. A right puts its possessor in an assertive position, one in which he may claim something, and that means claim it against another. So a right to a free education may be claimed by any child against the state, the right to vote may be asserted by any citizen against whoever would interfere, the right of habeus corpus may be demanded against the court by anyone charged with a crime, and so on. But these are quite a bit different from benefits, since a gift doesn't need to be claimed, and the giver doesn't owe it if it is.

II The language of rights has advantages over the language of benefits. Rights put the right-holder in the driver's seat; the right-holder may 26

elizabeth wolgast be seen as active while the recipient of a benefit is passive. A world with rights is a better one than a world without them, Feinberg argues. He imagines "Nowheresville" which is a world without rights and considers "what precisely (such) a world is missing . . . and why that absence is morally important" (1979, 84). The crucial thing absent is the activity of claiming, Feinberg thinks: Nowheresvillians,even when they are discriminatedagainst invidiously, or left without the things they need, or otherwise badly treated, do not think to leap to their feet and make righteous demands against one another. . . . They do not have a notion of what is their due. (1979, 84) Claiming depends, of course, on there being a prior right to claim, and although a right may be waived, rights' "characteristic use and that for which they are distinctively well suited, is to be claimed, demanded, affirmed, insisted upon" (Feinberg 1979, 87). Why do rights have crucial moral importance? Feinberg answers that the feature of claiming "gives rights their special moral significance." It is connected . . . with the customary rhetoric about what it is to be a human being. Having rights enables us to "stand up like men," to look others in the eye, and to feel in some fundamental way the equal of anyone. To think of oneself as a holder of rights is not to be unduly but properly proud ... and what is called "human dignity" may simply be the recognizable capacity to assert claims. (1979, 87) Men need to think of themselves as equal to others and claim their rights against others: that is a large part of what it is to be in the fullest sense a person. In that case nothing is more appropriate to a person than the possession of individual rights, rights which by their nature should be equal; and in Feinberg's view the claiming of these possessions has a moral value of its own. "The activity of claiming ... as much as any other thing, makes for self-respect and respect for others (and) gives a sense to the notion of personal dignity" (1979, 91). The language in which Feinberg praises rights is recognizably atomistic. He is thinking of individuals as independent entities, whose self-respect is important to them as separate entities. And their capacity to claim rights is part of their active pursuit of their own interests. Such talk of rights confirms the main features of the atomistic model and relies on its implicit values. My argument is that such a conception of individuals and their rights 27

hypatla is sometimes a misguided way of addressing injustices. "I Consider the issue of the maltreatment of patients by doctors and medical staff in hospitals. In a hospital a patient is entirely at the mercy of medical people whose expertise and positions give them great power. This means that their patients are vulnerable to abuses of power. The patient who is weak and frightened is by definition dependent upon the staff; and they, in virtue of their practical knowledge and ability, are in the position of his rescuers-can instruct him and help him to survive. Abuse of this power and authority is in view of the patient's helplessness a frightening kind of abuse. Historically, Michel Foucault argues, with the development of clinics and the opportunities they offer to study disease, a new doctor-patient relationship develops. "If one wishes to know the illness from which he is suffering, one must abstract the individual, with his particular qualities" (1975, 14). The doctor has to look through the patient at the disease. On the one side of the patient is the family whose "gentle, spontaneous care, expressive of love and a common desire for a cure, assists nature in its struggle against the illness"; on the other side the hospital doctor who "sees only distorted, altered diseases, a whole teratology of the pathological." In contrast, the family doctor cannot have the clinical detachment of the hospital doctor, but such medicine "must necessarily be respectful" of the patient (Foucault 1975, 17). Thus Foucault's account provides a plausible explanation as to how the problem of disrespectful treatment of patients in a modern hospital comes about. Moreover the search for knowledge and the holding of power go hand in hand, and as the doctor seeks knowledge of a scientific kind, his patient becomes increasingly an object under his control and less and less someone to be dealt with in personal terms. Here's the problem then. The patient is weak, frightened, helpless, but needs to be treated in many ways the way a normal person isneeds to be respected, even in his wishes regarding treatment, and ultimately perhaps his wish to die or be sent home uncured. The issue can be framed in different ways, but the most common way of dealing with it is to say that the patient has a right to respectful and considerate treatment, a right to have his wishes respected with regard to the type of treatment, a right to be informed about the character of his treatment, etc. To force decisions upon him which he might make differently if he weren't ill and dependent seems a kind of subjection. It is as if the patient could be mistreated because he is ill, which recalls Butler's grotesque society Erewhon where illness is a crime demanding punish28

elizabeth wolgast ment. There a judge who is trying a case of pulmonary congestion pronounces: "You may say that it is your misfortune to be criminal; I answer that it is your crime to be unfortunate" (1927, 110). The hospital is an awesome environment for a patient and a morally sensitive one for medical staff. In the wake of protests over mistreatment of patients, the American Hospital Association instituted a code of patient's rights which has been widely adopted in this country. The first of these rights is "the right to considerate and respectful care," the fourth is the "right to refuse treatment to the extent permitted by law and to be informed of the medical consequences of his action," the eighth refers to his "right to obtain information as to the existence of any professional relationships among individuals . . . who are treating him." Yet at the end we are told: No catalog of rights can guarantee for the patient the kind of treatment he has a right to expect. . . . All (the hospital's various) activities must be conducted with an overriding concern for the patient, and above all, the recognition of his dignity as a human being. (1973)2 These rights are posted prominently in the hospital so that both patients and staff will be reminded of them as they go about their routines. Now what can be wrong with this way of dealing with patient care? First, the rights give us a picture of abuses by implication, similar to the "right not to be beaten by your spouse." They incriminate doctors as commonly guilty of unethical or insensitive conduct; otherwise there would be no need to "protect" patients from them. Secondly, it focuses upon a patient as complainant. In the language of rights the person holding a right holds a license to protest against others when his right isn't respected. That is part of the language and one reason why it's connected with self-respect. Now what is wrong with instituting rights which a patient can claim against the hospital and doctors and nursing staff is that the patient is in no position to exercise such rights. He may be in pain or drugged through medication, frightened about his future and dependent upon others. Who is he to complain? To give him rights puts him in the role of an assertive and able individual, but this is inconsistent with his being ill. Someone who presses a claim and demands respect for his rights does so from the stance of a peer vis a vis the one complained against, as Feinberg says. But the doctor-patient relationship is not one of peers.3 As one writer observes, "Strong statements of patient rights imply a parity between physician and patient not usually possible in the situations under which . . . physician-patient relationships are developed" (Engelhardt 1978, 136). The patient needs the doctor who 29

hypatia doesn't in the same way need him. Moreover the patient "often enters into the arms of medicine as one might enter passionately into the arms of a lover-with great haste and need, but little forethought" (ibid); in such circumstances a cool consideration of one's situation is impossible. Once recovered and out of the hospital the patient can then exercise his rights-take the doctor to court and sue the hospital for damages. But this remedy is no remedy at all. What a sick and dependent person needs is responsible treatment while unable to press any claim against anyone. How then ought the problem be addressed? The moral difficulty comes to roost in the doctor-patient or staff-patient relationship; something isn't right there. As the Patient's Bill of Rights asserts, a doctor ought to treat his patients with respect and concern, for that is his responsibility and part of his professional role. If he doesn't do so he fails to be a good doctor no matter how knowledgeable he is. Then why is a set of rights given to the patient?-it's the doctor who needs to be reminded of his charge. Here is where the focus ought to be, logically-on the doctor's fulfilling his responsibility. It is the role and responsibilities of doctors and medical staff that need attention. The doctor who sees the disease as the object of his interest, and sees the patient's idiosyncracies as distractions from the pure case he wants to understand, is surely seeing the patient in a dehumanized way. Foucault speaks of it as a botanical view of medicine, for the outlook is similar to that found in botany as well as in mechanics or physics (1975, 17). Moreover, taking medicine as a science makes it diffucult to see why a doctor should take the patient seriously as a person. That isn't objective, that isn't how a physical scientist would view him. The problem of patient treatment, then, is connected with our whole conception of medicine and its place in the community. An obvious approach to correctingthe problem would be to approach the medical community with exactly this concern, which pertains to everyone. Penalties can be imposed when an ethical code is violated, or there might be a legal licensing requirement; the codes of current medical practice might be taken out of the hands of the medical brotherhood. Various legal and institutional ways could be devised to deal with the problem, and we don't need to decide here which ones would be practical. However there are barriers to this approach. In the atomistic model connections of responsibility or dependence don't appear; there aren't any. In the same way molecular theory cannot allow that some molecules take care of others or defer to them. The language of rights reflects the atomistic fact that relations of individuals to one another are relations between autonomous entities who are peers. And these 30

elizabeth wolgast peer-relations give rise to contracts in which both parties pursue their self-interests. Looking at the doctor-patient relation in this light, there is no room for-no representation of-the doctor's responsibilityfor the patient. There is similarly no room for anyone's responsibility for another; everyone is responsible for himself and that's all. Thus, we are blocked from dealing with the problem in terms of the medical professional's responsibility for the patient. Atomism prefers to give the patient rights. But it doesn't make any sense to do what we do in this case, viz., to put the burden of straightening out the problem of medical negligence and disrespect on the shoulders of those already unable to handle the practical details of life-to say to such people, "Here are your rights; now you may press a claim against the doctor in whose care you placed yourself or waive your right, just as you please." The relationship between doctor and patient is appropriately one of trust, while this remedy implies the absence of trust. It also makes no sense to assume that a patient has a healthy person to speak for him and press his rights. For even though such a person exists, the patient's dependency may still prevent his taking action against those who are supposed to care for him. When he is well (if he recovers), he-and his representative-can then go about bringing a suit against the doctors or whomever. But this simply shows that the right he possesses is a right appropriate to a well person, not a sick one. This conception of patients' rights is irrational and impractical.

/V Another case where rights are commonly spoken of but inappropriately is in regard to children. The idea that there is a set of rights that children have which their parents ought to respect is prompted by the prevalence of child neglect and child abuse. That these wrongs exist and children are their victims is not open to argument. Neither is it in doubt that something needs to be done about it, even though the perpetrators are the victim's own parents. Parents who abuse children present a difficult problem for the community. The difficulty is with the strategy of putting rights in the hands of dependent children, rights for them to exercise against those on whom they depend. As with patients' rights, the model applied here is that of two equal and independent peers in a voluntary relationship-like that of contract. But that model doesn't fit this case. The child doesn't enter into its relationship with its parents voluntarily and isn't independent or a peer in relation to its parents. The main features of atomism are absent here. 31

hypatla Atomistic writers characteristicallystruggle with the place of children. Are they individuals with all the rights of individuals or not? Locke answers: We are born free as we are born rational; not that we have actually the exercise of either: age, that brings one, brings with it the other too. And thus we see how natural freedom and subjection to parents may consist together. (1690, Chap. 6, par. 61) Locke maintains both that children are free and rational and that they need their fathers until they become rational. That is nothing less than a contradiction. Milton Friedman's answer is also problematic. He writes: Freedom is a tenable objective only for responsible individuals. We do not believe in freedom for madmen or children . . .We believe, and with good reason, that parents ... can be relied on to protect them and to assure their development. . . However we do not believe in the right of the parents to do whatever they will with their children . . . Children are responsible individuals in embryo. They have ultimate rights of their own. (1980, 32-33) Both writers equivocate. They recognize that saying either that a child is independent or that it is altogether dependent is wrong. On the child's side, its parents hold a unique position of intimacy and protection. There is important warmth and affection which may even be consistent with abuse. The concern of the community for the problem is expressed by giving children rights against their parents. However pressing such a claim against its parents threatens the earliest and closest relationship a child normally has. It means courting the child's own insecurity. Like the patient, the child's position is dependent, that of someone needing the care and concern of another. But like the doctor-patient relationship, this relationship can also not be shown in our model. As with the patient we protect its interests by giving it rights, but in doing so blindly ignore the fundamental facts of human development and the various needs of children. Children are not 'dignified' by the possession of rights or by the ability to claim them. They are not even good judges of how they should be treated. Being a holder of a claim- right which gives a child little advantage for claiming it puts the child's security at risk. How should the wrongs of child abuse be addressed? As with patients we should speak to the wrongdoer here; we need to restrain and 32

elizabeth wolgast admonish, teach or punish him, reminding him of the value and seriousness of the parental role. It isn't only a matter between the law and the parent-culprit but between the law and the parent-child relationship, a relationship in which the community has a profound interest because of its connection with the stature of its future citizens. Making the child and parent adversaries, the one claiming its rights against the other, is hardly a good way to pursue this interest. Here we are speaking again of addressing the person in a responsible role, not to treat child and parent as peers. We need to deal with the issue in non-atomistic terms.

V Another class of wrong rights concerns women. Among these some of the most troublesome are the equal rights accorded women who have committed substantial parts of their lives to raising a family and managing a home, and who then need outside work. The theory says that they have equal rights to a job, an equal opportunity in a free, competitive labor market. The image operating here is that of similar units-men and women of all ages-similarly situated, and in that case what constitutes fair treatment will be to treat all of them exactly the same. A woman is discriminated against and pays a penalty for her sex only if she is denied a job when other factors are equal. But if we suppose her situation to be as I described then this is a misrepresentation. The model and its assumptions beg the important question, namely, how she should be treated given that her situation is not like a man's. Using affirmative action policies to address this problem and prohibiting 'agediscrimination' are stop-gap efforts which inherently conflict with the model. They rest on distinguishing people from one another, but in the model any distinctions of treatment are discriminatory and thus unfair.4 There is no theoretical solution to such problems, at least none within this model. Consider another curiosity that results from atomism, the debate over the constitutionality of maternity leaves provided by employers. In the view of the model, this benefit needs to be couched in equal-rights language; otherwise it appears as discriminatory against men. In order to avoid making a distinction between men and women, we assimilate maternity leaves to a disability or sickness leave, comparable to a leave one takes for the flu. Thus clothed in sex-neutral terms, the question arises whether a right to maternity leave is an 'equal right' or not. The argument then turns on the importance of the fact that pregnancy is a "disease" to which men are immune. In such famous recent cases as the Miller-Wohl and the California Federal Savings cases, the issue is exactly this: if a maternity leave is an equal right it may be fair; other33

hypatla wise it provides a special benefit to women and may be unfair to men. What ensues in the pursuit of such logic is strange reasoning. For instance, we ask if men have an equal right because they could have a leave if they should become pregnant? What a strange questionand how can a reasonable person answer? As one article describes the Miller-Wohl case: The equal treatment proponents . . . are thinking metaphysically. They approach the question (of the legality of maternity leave legislation)... by asking whether or not the statute conforms to a particularlegal construct, i.e., the equal treatment principle. They focus the debate on legal theoretical levels, rather than starting with an analysis of the concrete material problems of women in the workforce. (Krieger and Cooney 1983, 566)5 Speaking realistically, maternityleaves are needed because giving birth to a baby requires energy and because a newborn baby and its mother need care and attention. In part the child's needs dictate that its mother shouldn't work full time just after its birth. But if we introduce the mother-child complex into the argument, we lose the framework of individual rights. And how else can we deal with the issue? Considering the central position of a baby in birth, is it perhaps the baby who has the principal right? The answer is obscure. First we need to know if the baby is an individual. Even if it is could we say that it has a right to its mother's maternity leave? That doesn't make sense. A right attaches directly to a person; one person can't have a right for another. Moreover involving the child in the right won't work because it isn't born during the last weeks of pregnancy when, just because its birth is imminent, the mother needs extra rest and leave from work. The language of individual rights makes this issue into a puzzle, one in which we try to fit something into a form that's essentially alien. How many people are there in childbirth and do they each have a right, or together have a joint right, to maternity leave? And how does this complex of mother-and-baby compare to the simpler case of a man? What kind of 'disability' is it that leads to the birth of a child and a subsequent commitment to its care? The model gives no answers. Common sense would say that pregnancy isn't an illness but a strenuous productive period culminating in new responsibilities for a creature whose existence is fragile and care demanding. But the model can't admit this description. The dignity of a right-holder doesn't bring much dignity to the state of pregnancy or childbirth. The common argument that a right to a maternity leave is a special and unfair right of women unless it is somehow extended to men is 34

elizabeth wolgast a last absurdity deriving from the individualism and the language of rights. It puts men in the position of jealous siblings, watching for any partiality shown to others but not shown themselves. They are in the position of competing with pregnant women for favorable treatment, one in which they disregard the reality of childbirth. Emphasis on equality in such arguments caricatures the notion that equal rights are fair. Women have an equal right to vote-there's no problem in that; but whatever fairness was thought to reside in the notion of equality has disappeared in the present case. Here we haven't the language to describe the situation which is reallyfair. We are caught in a logical net of our own creation.

VI "Each person," John Rawls writes, "must decide by rational reflection what constitutes his good"; all actions show that "the principle for an individual is to advance as far as possible his own welfare, his own system of desires" (1971, 11). "The main idea," Rawls says, "is that a person's good is determined by what is for him the most rational long-term plan of life. ... A man is happy when he is more or less successful in the way of carrying out this plan" (1971, 92-93). One major probem with the model is that it cannot show individuals in any relationships other than relations of peers, such as competitors or parties to contracts. It cannot show any of the variety of relationships in which people do not stand as peers. It tends to assimilate all relationships to those of independent, free and self-interested individuals or neglects them. Economic theory reflects this limitation, as James Coleman observes: Classical economic theory always assumes that the individual will "act in his interest"; but it never examined carefully the entity to which "his" refers. Often, as when households are taken as the unit for income and consumption, it is implicitly assumed that "the family" or "the household" is this entity whose interest is being maximized. Yet this is without theoretical foundation, merely a convenient but slipshod device. (1982,1) The 'household' is a convenient device for preserving the outlines of atomism. But treating a family-which consists of more than one person-as a single individual "acting in its own interest" is at the same time at odds with the assumptions of atomism. Rawls makes a similar adjustment. He explains that in his argument "the term 'person' is to be construed variously. . . . On some occasions it will mean human individuals, but in others it may refer to 35

hypatia ... business firms, churches, teams" and of course families (1958, 166). These units are then each regarded as rational and self-interested. How else can we conceive families? As a collection of individuals in a voluntary organization? In either case-either subsuming a family relationship under the model of a person or treating it as a contract between persons-distorts it unrecognizably. The independent, rationally self-interested individual stands in the center of social and economic theory, and from its individual interests all other features of a society are presumed to derive. But how can we account for the usual relations people have with one another? The most satisfactory answer the model gives is: by contracts. In such agreements, each party agrees to make some concessions in return for advantages to himself. Mutual self-interest is the explanatory factor of all bonds. Consider the idea of a contract which no one enters into except for his own benefit. The basic motif is explained by Milton Friedman: "If an exchange between two parties is voluntary, it will not take place unless both believe they will benefit from it." Thus it is that "economic order can emerge as the unintended consequence of the actions of many people, each seeking his own interest" (1980, 13-14). Now apply this picture to the patient who needs help and the doctor who has what Friedman calls his "personal capacity" to sell. According to Friedman, the doctor's only motive in helping the patient is his own interest. However this interest can be defined as more than "myopic selfishness." It is whatever it is that interests the participants, whatever they value, whatever goals they pursue. The scientist. . the missionary ... the philanthropist ... are all pursuing their interests, as they see them, as they judge them by their own values. (1980, 27) The doctor may or may not be acting selfishly when he contracts with the patient; he may have a personal interest in the patient's health, or may only be concerned with his welfare. There's no room for a distinction, in Friedman's theory, between the good doctor and the clever mercenaryone. None has a responsibiltyto concern himself with anyone else's health. Plato thought the distinction between good and bad doctors was clear enough. In the Republic he has Socrates ask Thrasymachus But tell me, your physician in the precise sense . . . is he a money-maker, an earner of fees, or a healer of the sick? And rememberto speak of the physician who is really such. 36

elizabeth wolgast Later he asks: "Then medicine . . . does not consider the advantage of medicine but of the body?" He concludes about the physician: Can we deny, then . . . that neither does any physician in so far as he is a physician seek or enjoin the advantage of the physician but that of the patient? For we have agreed the physician, 'precisely' speaking, is a ruler and governor of bodies and not a money-maker. (1963, 591-592) Now consider the approach of someone ill to a doctor who has the skill to treat and help him. If the doctor-patient relationship is a contract, it is a grossly unfair contract, susceptible to a multitude of exploitations. As H. Tristram Engelhardt writes, the physician-patient relationship is likely to be assumed under circumstances that compromise the integrity of the patient. ... At the very moments when much must be decided by the ill or dying person, he is often least able to decide with full competence. Disease not only places the patient at a general disadvantage ... it also makes the patient dependent upon the physician. (1982, 133) Now the theory of contracts rests on assumptions about the competence of each party and their independence of one another with respect to the contract. But here there is a relation governed by dependency, not autonomy, one in which the power and the clear options are mostly on the side of the doctor. The patient is a poor example of a rational consumer. What chance has he of driving a fair bargain? Given the doctor's motive and ability to get the best of him, the patient might rationally choose not to approach a doctor at all. The best attitude of an invalid toward his doctor is trust, not trust to fulfill a contract whose terms are unspecified, but trust in his concern for his patient's welfare. Without that trust, a doctor loses some of his authority and power to help. He becomes a hired physiological consultant. Consider closely the common idea that marriage is a contract made by the parties for their mutual self-interest. A sensible person has to wonder, a contract for what? Concerning what? Suppose that a couple at their wedding are making an agreement regarding the exchange of goods or services, an agreement based on mutual self-interest. What are the conditions of the contract? Does one promise to love, honor and obey? The first is impossible to promise, the second and third are demeaning to free agents. Other conditions mentioned are to endure for better or worse, for richer and poorer, in sickness and in 37

hypatla health-eventualities that are risky and vague. And how long does the contract run? Until death. What rational being would accept such a deal? Legally such a contract wouldn't be valid. No performances are specified, too much is left to chance. And of course such contracts aren't 'enforced.' The terms are too open-ended and unspecific. Marriage is a legal relationship, voluntarily entered into, and in this way it is like a contract. But the commitment to weather unknown exigencies is a condition the institution of contracts cannot tolerate.6 On the other side, if marriage had to be construed as a contract, one might argue, there would be nothing resembling marriage at all. A contract account of other human relationships leads to consequences just as bizarre. Think of children under a contract with their parents-to what, behave? And their contract is broken when they don't? And what is it that the parents contract to do on their side, and whom did they contract with, originally-the newborn or the newly conceived baby? And what did they agree to do?7 The implications of this picture are amusing, but no illumination whatever can be gotten from them. Again, teachers don't contract with their students.8 Can one contract to learn what one is supposed to? The right characterization of the teacher's role is to assist in the student's education; but under this description the exact performance-the way the teacher teaches, exactly what he does-isn't specifiable. Again, the theory of contracts cannot help us understand the relationship. Another curiosity of rights-talk takes form in the discussion of abortion. In our theory we have free and independent individual decisionmakers. Is the fetus one such individual? If so, then it has all the rights of any person and should be able to claim its rights against its motherto-be. But how can that be imagined?9 The fetus' need for its mother is even more total and unqualified than that of a young child for parents, and if individual rights don't apply there, how can they apply to the fetus? But if a fetus isn't a person, what else can it be? Some propose that a fetus can be thought of as a kind of property. One sometimes speaks of one's foot in this way as well as one's kidney, and even one's self-respect and good reputation. But a fetus isn't like a body part. It is a potential baby, which is to say a potential human being. Its birth is not like an amputation or organ removal but is the advent of a new future member of the community. Either way of representing a fetus is fraught with difficulties. On the one hand we make too much of it-grant it rights that cannot pertain-and on the other make too little of it-treating it as property whose owner can dispose of it however she likes. For the point and virtue of ownership is one's right to do with what one owns whatever one likes. 38

elizabeth wolgast There are certainly two sides to the question whether women should be restricted from having abortions and what restrictions there should be; that's understandable. What is strange is the way we are forced to present the two sides, forced to give caricatures of the pregnant woman and the fetus. What forces us is our commitment to an atomistic way of thinking. In looking for a rationale for our moral position, we have to fit the issue into a grid which allows only individuals, individuals who have property and make contracts. But the reasoning is bizarre. Imagine a Martian who came to study us and make sense of our system. He hears our arguments as to whether the fetus is a person (in the full and legal sense) or a bit of property (in the proper tort-law sense). Wouldn't he consider us morally undeveloped or at best mentally handicapped? A human fetus is like nothing but another fetus, conceptually more like a rabbit fetus or a raccoon fetus or an elephant fetus than like a fully developed human. What is wrong, the Martian wonders, with our perceptions that we don't see this but persist in arguing about fetal personhood and fetal rights? The fetus is a stage in a process by which an infant comes into a community-a community of chimpanzees or elephants or raccoons or humans. Apart from this framework it's indefinable. It would be best to say then that a fetus is sui generis, its own kind of thing, and so irreducible to something else. But basically what is wrong here is the grid we anxiously press upon the facts of reproduction. We haven't a chance of making sense when we deal with either babies or fetuses in these terms.

VII A deeper question about the language of rights needs to be addressed, namely why, whenever we deal with a wrongful act or practice, we feel so impelled to refer to some right or other? The reason behind this, I propose, is that a right is useful as a justification for condemning something as wrong. As Feinberg puts it, claim-rights are prior to and thus more basic than the duties with which they are correlated (1979, 84). They give a foundation for demanding that someone do or refrain from something. We have a justification for calling something wrong if we can refer to a right which the action violates. The reasoning works like this. We call burglary wrong, but what justifies us? We want some answer here, so we reply: what justifies us is the fact that a person has a right not to be burglarized, not to have his property invaded, abused or stolen. Similarly we say that mugging is wrong and is so because a person has a right to walk down the street safely. And murder is wrong because a person has a right to life. Rights proliferate as we seek justification for condemning anything as wrong. 39

hypatla The question is whether we need these justifications? Isn't murder simply wrong, wrong in itself? The common-sense answer is yes-how could we need justification for something so obvious? If we reflect on the path which brought us to give a justification, we see it is our conviction that we are justified in calling murder wrong. We are of course. But does this imply that there must be a justification? What would happen if we didn't have one? Murder's wrongness can be contrasted with the wrongness of something stipulated by a rule, for instance, moving a castle diagonally in chess. There a justification clearly exists, the rule saying how castles can move. And the wrongness of non-performance of a contract has a justification, namely the place where it says here that you will do suchand-such. But in the case of some serious moral offenses no analogous justification exists. "The chain of reasons has an end" and "at some point one has to pass from explanation to mere description," Wittgenstein observes (1958, 143; 1969, 189). Calling murder wrong is more like calling a certain color red, i.e., what justifies us in using these terms is that the word means what it does. We are justified, but that is not the same as having justification. In this case we have no reason to think that any right needs to be invoked to call murder wrong. The 'right to life' is unnecessary and by eschewing it we avoid the consequence that death, which is its true negation, is wrong. Moreover there is an important general benefit, namely that when we leave rights aside, our view of murder takes on a different appearance, just as patient-mistreatment appears differently when we stop focusing on patient's rights. Saying that Smith murdering Jones is wrong because it violates Jones' right to life puts the focus upon Jones and his rights, even makes it appear that there is something that Jones can do with this right after the fact, which is silly. What really concerns us, however, is something done by Smith; it is his action that belongs in the center of our perspective-not the violation of Jones' now-useless right, but murdering. Seen this way, an emphasis on individual rights helps to obscure the moral objection to killing Jones rather than giving it a firm foundation. Without doubt rights have an important place in our legal and political systems and they often do give reasons for condemning actions which would be permissible without them. But seeing them as justifications in some instances-as e.g., the right to vote justifies calling a poll tax wrong or unjust-we are led to think that they are always valuable, that without them our censure of wrongs is weakened, and this conclusion is mistaken. Rights sometimes supply only the appearance or form of a justification and in reality may be superfluous. The corrective to this tendency to supply rights as justifications, as 40

elizabeth wolgast if they addedsubstanceto our condemnationsof wrongs,is realizing that we know some thingsto be wrongmore securelyand fundamentally than we know what rightspeoplehave or ought to. In discussing our demandsfor justifications,Wittgensteinobservedthat "it is so difficultto find the beginning.Or, better:it is difficultto beginat the beginning.And not try to go furtherback(1969,471). We may distort our subject if we try to always find somethingdeeper, always look for anotherand anotherreason. Therehas to be an end to justifications and with wrongslike murderwe havehit bedrock.In the present case this tendencyto seekjustificationshas an even moreunfortunate side. If one really needs a justificationfor the wrongnessof murder that implies one isn't sure it is wrong. But if one's moral judgment is so uncertainand so much of moral understandingis missing,then it's also unclearhow the demandcan be satisfied. It goes beyondthe frameworkin which moraljustificationsare meaningfullyasked for and given, and beyondthat frameworkis skepticism.The demandfor justificationthus threatensto weakenratherthan supportthe structure of moral thinking.

notes 1. Feinberg also emphasizes these opinions. If Nip has a claim-right against Tuck, he argues, then "Nip not only has a right, but he can choose whether or not to exercise it, whether to claim it, . . . even whether to release Tuck from his duty" (1979, 85). For an interesting examination of the relation of rights and claims, see Alan White (1983, 139-160). 2. Also see the "Patients' Rights Handbook" printed and distributed by the State of California under Governor Edmund Brown, Jr.'s administration, where a patient is assured "the right to decent living conditions and uncensored mail" (p. 13), "the right to decent living conditions which include the right to receive services in an environment which is physically safe and sanitary, and which will contribute to your recovery" (p. 16), and "the right, while living in an institution, to prompt and adequate medical treatment" (p. 19). It's ominous to imagine not assuming such conditions for patients, to envision the need for these rights. 3. For a discussion of the relation of peers see Wolgast (1980, Chapter Three). 4. See Richard Wasserstrom (1979, 581-622). Wasserstrom argues for a model in which no sex differences are recognized, where both sexes are in detail treated alike. What his exercise shows is how complex and deep the theoretical problem is; if we are determined to deal with it in terms of equal rights, we have to reconstruct our society so that equal rights will befair. For a discussion of Wasserstrom's argument see Wolgast (1980, Chapter One); also see Wolgast (1983, 295-314). 5. This article contains a good account of the theoretical problems presented by the maternity issue for the law; however, Kriegerand Cooney, like their opponents, couch the issue in terms of a women's right, as if the problem didn't involve others. For some suggestions about a different approach, see Wolgast (1980, Chapter IV). 6. John Rawls (1971, see particularly pp. 525-526, 573) acknowledges that contract can't explain the bond of marriage, but seems very confused what other account should

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hypatla be given. 7. Rousseau proposed, ingeniously, that "a father's love for his children repays him for the care he bestows on them." Though he did not think that the relationship was founded on contract he thought that it was important for children to become independent as soon as they are not dependent upon their father. Then, "if they continue to remain united (with their father), it is no longer nature, but their own choice, which unites them; and the family as such is kept in being only by agreement" (1968, 50-51). 8. I omit consideration of the medieval practice of hiring a tutor whose job was to teach his speciality for a fee, as being a very special case. 9. There is a wealth of literature debating the question whether a fetus is a person. Mary Anne Warren (1979, 216-226) works out a defense of the proposition that the fetus, while potentially human, lacks some necessaryfeatures of a human being, and thus doesn't stand on peer terms with its potential parent.

references American Hospital Association. 1973. Hospitals 4 (4). Repr. 1978: Contemporary issues in bioethics, eds. T. Beauchamp and L. Walters. Belmont, CA: Wadsworth. Butler, Samuel. 1927. Erewhon. New York: Random House. Coleman, James. 1982. Papers on non-marketing decision-making. Quoted in J. Margolis, Selfishness, altruism and rationality: A theory of social choice. Cambridge:University of Cambridge Press. Engelhardt, H. Tristram. 1978. Rights and responsibilities of patients and physicians. In Contemporary Issues in Bioethics, eds. T. Beauchamp and L. Walters. Belmont, CA: Wadsworth. - . 1982. Rights and responsibilities of patients and physicians. Repr. Contemporary issues in bioethics, 2nd edition, eds. T. Beauchamp and L. Walters. Belmont, CA: Wadsworth. Feinberg, Joel. 1979. The nature and value of rights. In Rights, ed. D. Lyons. Belmont, CA: Wadsworth. Foucault, Michel. 1975. The birth of the clinic. Trans. A.M. Sheridan Smith. New York: Random House. Friedman, Milton. 1980. Free to choose. New York: Harcourt, Brace, Jovanovich. Hart, H.L.A. 1979. Are there any natural rights? In Rights, ed. D. Lyons. Belmont, CA: Wadsworth. Krieger, Linda and Patricia Cooney. 1983. The Miller-Wohl controversy: Equal treatment, positive action and the meaning of women's equality. Golden Gate University Law Review 13 (3): 513-577. Locke, John. 1690. Second treatise on civil government. Lyons, David. 1979. Rights, claimants, and beneficiaries. In Rights, ed. D. Lyons. Belmont, CA: Wadsworth.

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elizabeth wolgast Plato, 1963. Republic. Trans. P. Shorey, ed. H. Hamilton. Princeton: Princeton University Press. I, 341c-342d. Rawls, John. 1958. Justice as fairness. Philosophical Review 67 (April) -. 1971. A theory of justice. Cambridge: Harvard University Press. Rousseau, Jean Jacques. 1968. The social contract. New York: Penguin Books. Warren, Mary Anne. 1979. On the moral and legal status of abortion. In Philosophy and women, eds. S. Bishop and M. Weinzweig. Belmont, CA: Wadsworth. Wasserstrom, Richard. 1979. Rights, human rights, and racial discrimination. In Rights, ed. D. Lyons. Belmont, CA: Wadsworth. White, Alan. 1983. Rights and claims. In Law, morality and rights, ed. M.A. Steward. Dordrecht: Reidel. Wittgenstein, Ludwig. 1958. The blue & brown books. New York: Harper & Row. ---. 1969. On certainty. Trans. D. Paul and G.E.M. Anscombe, eds. G.E.M. Anscombe and G.H. von Wright. New York: Harper & Row. Wolgast, Elizabeth. 1980. Equality and the rights of women. Ithaca: Cornell University Press. --. 1983. Is reverse discrimination fair? In Law, morality and rights, ed. M.A. Stewart. Dordrecht: Reidel.

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linda j. krieger Through A Glass Darkly: Paradigms Of Equality And The Search For A Woman's Jurisprudence In this article, Ms. Krieger explores the controversy concerning pregnancy disability leave presented by the case of California Federal Savings v. Guerra in light of Thomas Kuhn's model of scientific paradigm change and Carol Gilligan's theory regarding sex differences in moral reasoning. She argues that the controversy reflects a period of paradigm crisis in equality jurisprudence, brought about in part by the recent inclusion of greaternumbersof women into the jurisprudential community.

A t the close of The Republic, Plato tells a story with which you are probably familiar. In this story, there is a cave, and in the cave are people who have lived there all of their lives. The people are chained in place, so securely that they can not even turn their heads, facing the back wall of the cave. The mouth of the cave faces toward a great light, and between the light and the cave there is a walkway, along which people, objects, and animals pass. The light throws their shadows on the back wall of the cave, and the chained prisoners see the shadows, have never seen anything but the shadows, and they take the shadows to be the people, objects and animals themselves. Every field of human intellectual endeavor gives substance to Plato's allegory of the cave. None of us, in any field, know that which we study as it really is. The physicists do not understand the nature of matter and energy; the jurists do not know justice; the theologians have yet to discover the name of God. None of us looks face to face at the subjects of our study. We look at our fields through a glass, darkly, our perception mediated by cognitive structures called paradigms. These paradigms, like the configuration of the cave, determine how we will look and what we will see. The jurisprudence of equality is no exception to this phenomenon. Over the centuries, successive generations of lawyers, judges and legal scholars have built elaborate jurisprudential models called "legal Hypatia vol. 2, no. 1 (Winter 1987). © by Linda J. Krieger.

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hypatla theories." Now, as before, we apply these models to conflicts between people, or between people and their governments, with the expectation that their application will effectuate outcomes consistent with our subjective inner sense of justice. But lawyers and judges view justice through these paradigms, and our dependence on and allegiance to them often limit what we see. All disciplines which operate under paradigms, and I submit that all do, move back and forth between two stages as they develop over time. These stages are described by Thomas S. Kuhn in his landmark work The Structure of Scientific Revolutions (1970). In the first stage, the field's students, its "community," operate smoothly under an ascendant paradigm. The paradigm is satisfactory to the community. It neatly describes what the community will observe in the future. The paradigm operates like an accurate road map, guiding the field and providing a reliable framework for ever increasing achievement. But as time passes, one or more members of the community discover anomalies or "counterinstances" which the paradigm did not predict and which it cannot explain. If these anomalies are significant enough, and if they resist reconciliation with the paradigm long enough, the field may be thrown into a state of crisis, with some students vehemently defending the paradigm against those who have begun to question its universality. At some point in this crisis someone may articulate a new paradigm, and a struggle for loyalty between the old and new systems of thought may ensue. If the new paradigm succeeds, the process begins all over again. The community now sees differently, but it still sees shadows on the wall of a cave. The Miller-Wohl/California Federal controversy' reflects a discipline in this second stage-the stage of paradigmcrisis and, perhaps, transformation. The equal treatment paradigm, also known as the liberal view of equality, has informed and guided the work of the feminist legal community for the past two decades. However, it has recently been confronted with a number of equality problems relating to pregnancy and childbirth that it cannot solve. The community has been thrown into a state of crisis, as a competitor paradigm has emerged and begun to challenge the equal treatment approach. This paper is about this process of paradigm crisis and change, and about the search for a womancentered jurisprudence of equality that it reflects. My aim is to synthesize three pieces of work. The first is an article entitled "The Miller-Wohl Controversy: Equal Treatment, Positive Action and the Meaning of Women's Equality" (Krieger and Cooney 1983)2 regarding the Miller-Wohl v. Commissioner of Labor caseCalifornia Federal's legal predecessor. The second piece is Thomas Kuhn's work, The Structure of Scientific Revolutions (1970). The third 46

linda j. krieger is psychologist Carol Gilligan's book In A Different Voice (1982). Gilligan advances a hypothesis which many of us have suspected at times to be true but few have ever dared say: generally, women adhere to a different system of moral reasoning than do men. Women speak of what is fair "in a different voice." Different moral issues or problems seem significant to us, and different resolutions seem satisfactory. In section I, I will attempt to show that jurisprudential constructs develop and change in a manner similar to that described by Kuhn. In one state of legal endeavor, the jurisprudential community works under a commonly accepted paradigm, which, when applied to the facts of legal cases, renders results which comport with the community's subjective sense of justice. But then at some point, for reasons I shall also explore, the paradigm when applied to the facts of some cases fails to provide results which the community senses as "just." These cases can be viewed as "counterinstances," much like those observed by scientists as they perform experiments. The appearance of these counterinstances may throw the community into a state of crisis and ultimately lead to paradigm change. However, the law is different from science, and as I will elucidate in section II, this is where Professor Gilligan's thesis enters into the inquiry. In a standard case, once a particular scientific experiment has been performed and duplicated sufficiently, there can be little disagreement as to its results. Either the paradigm predicted those results or it did not. There is a certain amount of objectivity in the evaluation of experimental results. Not so with the law. The same result can be perceived as being "just"-i.e., predicted by the jurisprudential paradigm-or "unjust"-anomalous with the paradigm-depending on the political and ethical sensibilities of the "observers." It is much more frequently the case in law than in science that an anomaly will be seen or go unobserved depending on who is looking. Thus, the ethical sensibilities of the legal community will themselves determine whether counterinstancesare observed and the field renderedvulnerable to paradigm crisis. Finally, as will be seen in section III, the Miller-Wohl/California Federal controversy represents a crisis stage in feminist equality jurisprudence-a struggle between two paradigms of women's equality. The older paradigm is the equal treatment theory, well-founded in the typically male view of justice that Professor Gilligan describes. The new model is a competitor-an alternative paradigm-which is spoken in a different voice.

A number of analogiescan be drawnbetweenKuhn'sdescription

A number of analogies can be drawn between Kuhn's description 47

hypatla of the structure of scientific progress and the process of developing jurisprudence. While a scientific paradigm is a set of concepts, theories and methods used to explore, explain and predict phenomena occurring in nature and observed by the scientist, a legal paradigm is a set of legal principles, rules, terms and methods that are applied to conflicts between two or more competing interests. The goal of a scientific paradigm is to explain consistently and accurately predict phenomena to the satisfaction of the scientific community. The goal of a jurisprudential paradigm is to resolve conflicts uniformly in a manner that consistently comports with a subjective sense of "justness" or "rightness" held by a suitably large proportion of the jurisprudential community. There are periods of "normal jurisprudence," just as there are periods of "normal science" (Kuhn 1970, 23-42). During periods of normal jurisprudence, an ascendant paradigm is applied to an ever-expanding set of fact patterns producing results which comport with the community's sense of justice. However, as time goes on, the paradigm when applied to a particular fact pattern produces a result which violates the sense of justice of at least a significant segment of the community. This occurrence serves the same purpose as the anomalous experimental result during a period of normal science (Kuhn 1970, 52-66). Perhaps a number of anomalous legal results are observed; the old paradigm fails to lead to "just" solutions. There grows within the jurisprudential community a burgeoning sense that the paradigm is not an accurate roadmap to justice. As this occurs, we observe within the community growing dissension, competing articulations of the old paradigm which attempt to reconcile it with the observed anomalies,3 recourse to philosophy or interdisciplinary perspectives,4 and a sense of discouragement, even despondence. Like Einstein, anguishing as the assumptions of Newtonian physics collapsed around him, lawyers and legal scholars may feel "[i]t was as if the ground had been pulled out from under one, with no firm foundation to be seen anywhere, upon which one could have built" (Einstein 1949, 45). In the midst of this dissension, someone may articulate a new legal theory which, when applied to the anomalous causes, leads to results which the dissatisfied elements of the community find satisfactory. Then, as in science,5 there ensues a struggle within the community between the adherents of the old and new paradigms. When this sort of struggle occurs in jurisprudential communities, it bears striking similarities to those described by Kuhn. First, by applying the competing legal theories to hypothetical cases, the combatants subject the old and new paradigms to "paradigm testing,"6 in an effort to win the loyalty of uncommited members of 48

linda j. krieger the community. As described by Kuhn, adherents of the competing paradigms have difficulty communicating with each other. They view different types of problems as being significant and worthy of resolution; they speak different languages. In short, they "see different things when they look from the same point in the same direction" (Kuhn 1970, 150). In jurisprudential development,the emergence of an awareness of anomaly is often occasioned by the inclusion into the jurisprudential community of formerly excluded groups.These new members will often recognize as anomalous things that were not seen as such by the community's older members. These new members may not view as just results that before were deemed wholly acceptable. For example, the inclusion of blacks into the jurisprudential communty, crystalized in the work of the National Association for the Advancement of Colored People, led to the rejection of the "separate but equal" paradigm in the now famous school desegregation case, Brown v. Board of Education (347 U.S.483, 1954). Similarly, the inclusion of disabled people into the jurisprudential community resulted in the emergence of yet another model of equality-reasonable accommodation theory.7 The inclusion of formerly excluded groups who see things differently-the "giving of a voice" in the jurisprudentialassembly-is critical in the evolution of civil rights law. It is at times only by their inclusion that results previously seen as "just" are instead viewed as anomalous. This is as true for women as for other disempowered groups. What differences between men and their newly included female counterparts might cause women to see anomalies where men saw none? To answer this question, we must first consider Gilligan's hypothesis.

Civil Rights Jurisprudence in a Different Voice Gilligan proposes that women's process of moral development and women's sense of what is "right" differs from men's. Men's moral judgment is based on what Gilligan terms an ethic of rights (1982, 21-22). This ethic is characterized by blind impartiality (1982, 18), emphasis on the individual, and a consideration of the individual as primary (1982, 19). It focuses on fair competition under one set of rules and procedures which apply equally to everyone (1982,10). This proto-typically male morality is based on an "ethic of justice" proceeding from the premise of equality-"that everyone should be treated the same" (1982, 174). 49

hypatla In contrast, women's moral judgment is based on what Professor Gilligan refers to as an ethic of care, which emphasizes connectedness and the primacy of relationships rather than individuals (1982, 19). This morality of care is based on the principle of non-violence-that no one should be hurt (1982, 174). Developmental psychologists who have studied children's moral development by observing their play note striking differences between girls and boys. Boys' play is characterized by competitive, long-lasting games played in large, age-heterogeneous groups. Boys become increasingly fascinated by the legal elaboration of consistent rules and procedures for the adjudication of conflicts arising in the course of the games, and they seem to enjoy the game-related litigation as much as the game itself (Lever 1976, 478-487).8 In contrast, girls' play tends not to be directly competitive. Girls tend to play in smaller more intimate groups. Conflicts are more likely to end a game; the preservation of relationships is valued over the continuation of a game. Girls are more tolerant in their attitude towards rules. They are more willing to make exceptions, and are more easily reconciled to innovation (Piaget 1932).9 Gilligan found these differences reflected in her own adult studies of men's and women's approaches to various moral dilemmas. For women in her studies, moral problems were seen to arise from conflicting responsibilitiesratherthan from competing rights. For these women, the resolution of moral problems required a contextual and narrative mode of thinking rather than one which was formal and abstract. The women participants were concerned primarily with the "activity of care," and their moral development was correlated with an increasing understanding of responsibilities and relationships. In contrast, male participants' conceptions were based on a morality of fairness, in which moral development was tied to an expanding facility with conceptions of rights and rules. Incorporating Gilligan's theses into Thomas Kuhn's model, it is easy to see how women members of the jurisprudential community could, because of their differing moral orientation, find anomalies where men do not.'0 Consider for example the problem of "special" pregnancy leave at issue in the Miller-Wohl and California Federal cases and discussed in Marjorie Weinzweig's article in this volume. If one views the California Federal case through the ethic of justice, no anomaly will be observed so long as everyone, male or female, plays under one set of rules that apply equally to all. Everyone must be treated the same. There is, under this mode of thinking, nothing "immoral" or "unjust" if a woman loses her job because of pregnancy, so long as her disability was created the same as any other type. What is important is blind 50

linda j. krieger impartiality. The problem is analysed-and solved-through an abstract rather than contextual approach. But one who applies an ethic of care will observe an anomaly when the equal treatment principle is applied to the pregnancy disability problem. A contextual ratherthan abstract analysis reveals that equal treatment does not really effectuate equality; it results in women being systematically disadvantaged in the workplace (Krieger and Cooney 1983, 518-522). This inequality is apt to go unobserved if only an abstract, theoretical approach is taken to the pregnancy disability problem. The adherent to an ethic of care however sees that unwillingness to make an exception to the equal treatment rules results in inequality of opportunity-hence, unfairness. Applying her ethical framework, she will more likely choose to adjust the rules to accommodate differences and preserve relationships. Thus, as will be demonstrated later in this article, the equal treatment paradigm of equality is consistent with, and in fact grows out of the ethic of justice, whereas its competitor paradigm, the bivalent or positive action approach, is based on the ethic of care.

"II The Miller-Wohl Controversy and the Process of Paradigm Change The equal treatment paradigm, or liberal view of equality, has informed the strategies of the feminist legal community for the past two decades. The paradigm achieved its ascendant status because it was very successful in solving a certain set of problems which the community had come to view as being particularly significant. The liberal view of equality, as applied to women's rights, is historically rooted in the writings of John Stuart Mill (1970). In the nineteenth century, Mill advocated against laws and social practices which openly denied women the right to vote, to own property, and to hold certain types of employment. His liberal model of equality advanced the proposition that once women were treated the same as men, equality would be achieved thorugh individual competition in the societal marketplace. Today, adherents of the liberal view are still primarilyconcerned with the elimination of laws or social practices which treat women differently from men because of their sex, and they use the equal treatment paradigm, often with remarkable success, to achieve this goal. The liberal or equal treatment model works best when "normative"" sex differences are used to justify sex-based classifications or private decisions regulated by sex discrimination laws. In these situations, the 51

hypatia equal treatment paradigm theoretically requires the elimination of the sex-based distinctions because, under its principles, normative differences cannot be used to justify discriminatory classification.'2 The characteristics of "similarly situated" individuals, not the groups to which they belong, must govern their classification or selection. The application of this paradigm to disparate treatment sex discrimination cases was very successful, and resulted in scores of legal decisions which the feminist legal community found to be highly satisfactory (Kay 1983). The model's success in resolving these cases to the community's satisfaction bolstered its status as the ascendant paradigm guiding the community's future work. Its adherents argued with great conviction that once all vestiges of differential treatment of women were removed, economic and social equality would follow closely behind. Virtually exclusive reliance on the equal treatment paradigm continued into the 1980's, even after it was becoming apparent that women were not making the types of economic strides within American society which had been predicted by the liberal view. Women as a group continued to earn less than sixty percent of men's income (National Academy of Science 1981). Despite the well-publicized entrance of large numbers of women into certain professions such as law and medicine, women have continued, as a whole, to be concentrated in sex-segregated, low-status, low-paid "female" occupations.'3 Additionally, progress on certain social issues of great concern to women seemed to be lagging behind that being made by women in Europe, where reliance on the equal treatment model had not been exclusive (Kriegerand Cooney 1983, 519-520). For example, under federal and most states' laws, women have no affirmative right to pregnancydisability or maternity leave (Krieger and Cooney 1983, 513-518). In contrast, the average period of absolute entitlement to such leave in other major industrialized countries is five months.'4 The equal treatment paradigm has been able to do very little by way of providing such benefits to women workers (Kriegerand Cooney 1983, 518-522). In fact, its application to the Miller-Wohl and California Federal cases could well result in those benefits being taken away from the small number of women for whom they have been provided by California, Montana, and Connecticut. It is curious that these barriers to the continued social and economic progress of American women, and the equal treatment paradigm's apparent inability to remove them, did not themselves cast the feminist legal community into a state of paradigm crisis. However, elements of Kuhn's observations may explain why this did not occur. In his discussion of the nature of "normal science," Kuhn makes 52

linda j. krieger the following point: We have already seen ... that one of the things a scientific community acquires with a paradigm is a criterion for choosing problems that, while the paradigm is taken for granted, can be assumed to have solutions. To a great extent these are the only problems that the community will admit as scientific or encourage its members to undertake. Other problems, including many that had previously been standard, are rejected as metaphysical, as the concern of another discipline, or sometimes as just too problematic to be worth the time. A paradigm can, for that matter, even insulate the community from those socially important problems that are not reducible to the puzzle form, because they cannot be stated in terms of the conceptual and instrumental tools the paradigm supplies. (1970, 37) Kuhn's observations reflect much of what happened in the feminist legal community in the late 1970's and early 1980's. Equality problems which could not be solved to the community's satisfaction through application of the equal treatment paradigm were largely dismissed as the concern of some other discipline or strategy. It is very easy for a community of lawyers to insulate itself from socially important problems that cannot be reduced to fit its governing paradigm-one simply tells the prospective client presenting such a problem that she does not have a case. Similarly, through the selection of topics for national or regional conferences, law review articles, or law school classes, problems amenable to equal treatment analysis can be encouraged as the "legitimate" focus of the community's efforts. Other problems can be identified as the proper subject of organizing, legislative, or social rather than legal solution. The equal treatment paradigm might have remained unchallenged but for the fact that, during this same time period, its application to certain sex discriminationcases led to results which substantial segments of the community found to be unacceptable. Interestingly,most of these "counterinstances" occurred in cases involving issues of pregnancy and childbearing. For the reasons stated below, this fact should come as no surprise. The liberal model of equality is based on two primary assumptions. The first is that there exist no "real" differences between women and men; that is, no differences that can not be dismissed as mere sexstereotypes or the results of stereotyping sex-role socialization. The second assumption is that there is no characteristicunique to one sex which 53

hypatla cannot successfullybe analogizedto some characteristicpossessedby the other. These assumptionsmake the liberalmodel structurallyincapableof definingsexualequalityin the contextof sex-specificconditions whichare at most only marginallyamenableto cross-sexanalogy. Some sex differencesare inherentratherthan normative,that is to say they are exclusiveto one sex. The most obvious examplesinclude women'scapacityto becomepregnantand the conditionsof pregnancy and childbirth.Whenfacedwith a law or practiceoperatingin these contexts, the liberalapproachmust rely on analogy. This is because the approachis basedexclusivelyon the moralprinciplethat "likesmust be treatedalike." Beginningin the early 1970's,and extendinginto the 1980's,as courtsbeganapplyingthe equaltreatmentparadigmto cases involving pregnancyand childbearing,the model seemed to fail. For example, in Geduldig v. Aiello (417 U.S. 484, 1974), feminist

attorneysin Californiachallengedthat state'sexclusionof pregnancyrelateddisabilitiesfrom its state-administered disabilityinsuranceplan. The plaintiff in Geduldigarguedthat this exclusionviolatedwomen's rightto equalprotectionof the laws. Becauseonly womenbecomepregnant, the plaintiff'stheoryin Geduldigreliedon analogizingpregnancy to medical conditions confrontedby men which were covered by the state's plan. It arguedthat pregnancyshould be treatedthe same as prostatectomy,whichlikepregnancyis sex-exclusive,or likecosmetic surgery,sinceboth are voluntary,or like a heartattack,since both are expensive.

The SupremeCourt, however,refusedto accepttheseanalogiesand insteadchoseto emphasizethe distinctionsbetweenpregnancyandother medicalor physicalconditions.Once the analogieshad been rejected, nothing in the equal treatmentparadigm,which mandatesonly that "likes be treatedalike," requiredthat women be treatedin a manner resultingin equalityof effect. This is becausethe liberalview is a formalisticmodel. It requiresonly equaltreatment,regardlessof the inequality of effect that equal treatmentmight occasion. Othercounterinstancesresultingfrom the application,or attempted application,of the equal treatmentparadigmarose in cases involving a woman'srightto abortion. For example,in Roe v. Wade(410 U.S. 113, 1973)the UnitedStatesSupremeCourtestablisheda limitedconstitutionalrightto abortion, but it did not do so on the groundsthat denialof that rightviolateda woman'srightto equalprotectionof the laws. In fact, the Courtdid not analyzeabortionas an issue of sexual equalityat all. Rather,it based its decisionon the "penumbral,"and significantlyqualified,rightto privacyimplicitlycontainedin the Bill of Rights (410 U.S. 113, 1973. Pp. 152-153). Sincethe Court'sdecisionin Roe v. Wade,numerouscommentators 54

linda j. krieger have urged that the case should have been decided on equal protection grounds following the liberal model's approach.'5 However, given that model's reliance on the equal treatment of "similarly situated" individuals, it is not surprising that the Court declined to apply its approach. To have done so would have required analogizing pregnancy to some physical condition for which a man might desire corrective surgery, such as a vasectomy or a hair transplant, and then mandating that they be treated the same because "likes must be treated alike." Such an argument would be doomed to failure, if not outright derision, as the distinctions between pregnancy and any physical condition faced by a man would leap out with much greater force than any attendant similarities.'6 The fact that the liberal model of equality failed to serve as the theoretical foundation for the Court's decision in Roe v. Wade would probably not have provided sufficient impetus, in and of itself, for serious questioning of the equal treatment paradigm.7 However, the situation became more critical in 1982 in the wake of Fritz v. Hagerstown Reproductive Health Services (No. 35, 639 Equity, Washington County Circuit Court, September 17, 1982). In Fritz, Judge Daniel Moylan of the Washington County Circuit Court in Maryland enjoined Bonny Ann Fritz from having a first trimester abortion because her husband would not consent. Judge Moylan based his decision on the grounds that the principle of equal treatment inherent in the Maryland Equal Rights Amendment required that a husband have an equal right to make the decision whether or not to terminate his wife's pregnancy. In reaching his conclusion, Judge Moylan analogized the condition of maternity to that of paternity, and then required that the two be treated the same. This is, of course, the analytical mainstay of the equal treatment approach." Fritz propelled the community further towards a state of paradigm crisis. In the early stages of the Miller- Wohl debate, equal treatment proponents had argued with substantial persuasiveness that any acknowledgement that pregnancy was a unique condition warranting special treatment in some circumstances was extremely dangerous and had to be avoided (Williams 1982, 175). Fritz struck at the very heart of this argument. It demonstrated, in a way that struck fear into the minds of substantial segments of the community, that a failure to acknowledge that pregnancy is in some ways unique and deserving of special treatment could lead to disastrous consequences. In so doing, the Fritz case "call[ed] into question explicit and fundamental generalizations" (Kuhn 1970, 82) of the equal treatment paradigm, and encouraged a paradigm shift. It was the Miller-Wohl case, however, that catapulted the feminist 55

hypatla legal community into a state of paradigm crisis.19 For it was not until the Miller-Wohl case reached the appellate courts that the ultimate anomaly occurred-clinging tenaciously to the equal treatment paradigm as the only permissible model of women's equality, a number of feminist legal organizations urged the courts to invalidate state laws guaranteeing women disabled by pregnancy an unpaid leave.20The fact that women's rights organizations, using an equal treatment approach, were advocating the repeal of laws providing women a guaranteed leave of absence for pregnancy-relateddisabilities so distressed such substantial segments of the women's legal community that a paradigm crisis was virtually unavoidable. The Miller- Wohl counterinstance called into question the paradigm's most basic assumption, that exclusive reliance on the equal treatment approach would be beneficial to women (Krieger and Cooney 1983, 518-520, 545-547). But as Professor Kuhn points out, a full-fledged paradigm crisis cannot occur before a competitor paradigm has been articulated. In 1980, as the Miller-Wohl case was making its way through the Montana District Court (515 F. Supp. 1264, 1981), a new paradigm of women's equality was being advanced by philosopher Elizabeth Wolgast. In her book, Equality and the Rights of Women (1980), Wolgast proposed a paradigm of sexual equality which she terms the "bivalent" view. Wolgast's paradigm rejects the two primary assumptions of the liberal feminist view: that sex differences are always "illusory" and that equal treatment of the sexes will result in functional equality. Rather, Wolgast maintains that the differences between men and women are substantial and that sexual equality will be achieved only if society deals with those differences respectfully and fairly by developing accommodating institutions. The essence of Wolgast's theory is that there are-or should betwo types of rights: "equal" rights and "special" rights. She used the following illustration to illuminate her approach. In American society, every person is deemed to have an "equal" right of access to public buildings. That this right is an "equal" right means that, with respect to it, any one person is interchangeablewith any other; the right adheres to all. But, a disabled person in a wheelchair will be unable to exercise this "equal" right unless a ramp is provided. In the absence of a ramp, he or she is not being affirmatively discriminatedagainst. But the failure to provide a ramp has the effect of denying the equal right. In such a situation, equality is effectuated only if the disabled person is afforded a "special" right to a ramp (1980, 51). Wolgast's paradigm was not without jurisprudential antecedent; the concept of equal rights and special rights, though not referred to as such, had by 1980 gained statutory and judicial acceptance in a number 56

linda j. krieger of civil rights contexts.21 However, it had never been applied in a sex discrimination context. Wolgast's bivalent view of rights provides a cogent and convincing justification for pregnancy disability laws such as those at issue in the Miller- Wohl and Cal. Fed. cases. Every individual has a right to equal employment opportunity. However, men and women are not interchangeable with respect to physical conditions which may affect their need to be absent from work. In addition to all the medical disabilities that members of either sex may face, or those sex-specific disabilities for which there exists a cross-sex analogue, women become pregnant and give birth to children. Childbirth occasions an average disability period of six weeks (Krieger and Cooney 1983, 519). Thus, in the context of an employer with a no-leave or inadequate leave policy, men and women will not have equal employment opportunity. Women will be disadvantaged. In order to effectuate the "equal" right of equal employment opportunity, pregnancy disability leave statutes provide women with a "special" right to a reasonable unpaid leave during periods of actual disability caused by pregnancy or childbirth. Thus, Wolgast's model, which in religious and physical handicap discrimination law had been referred to as "reasonable accommodation theory," supplied the competitor needed for a full paradigm crisis. When applied to the pregnancy disability leave problem, Wolgast's model eliminates the anomaly resulting from the application of strict equal treatment theory.22 The equal treatment paradigm is an outgrowth, perhaps even an essential tenet, of the ethic of rights underlying the typically male systems of moral reasoning described by Gilligan. The equal treatment approach requires the existence of one set of rules applicable to everyone regardless of differences within that group which might systematically disadvantage a particular class of its members. The method of reasoning under the ethic of rights, like that under the liberal view of equality, is abstract and formalistic and values theoretical consistence above equality of effect. Both the equal treatment paradigm and the ethic of rights emphasize competition, and elevate the interests of individuals over the interests of groups or the preservation of relationships. Under both the equal treatment approach and the ethic of rights, asking for "special treatment" or an "exception to the rules" is viewed as both dishonorable and dangerous to one's status in the larger community (Krieger and Cooney 1983, 551-557). In contrast, the bivalent (or incorporationist) approach to equality emphasizes the preservation of relationships over the equal treatment of individuals. It is more contextual, more willing to make exceptions to "the rules," and more willing to compromise the equal treatment 57

hypatla principle to achieve equality of effect. In short, this approach reflects the ethic of care identified by Gilligan as being more characteristic of women than men. The debate over the equal treatment and incorporationist paradigms is in many ways a debate over the underlying ethic that will guide the work of the feminist legal community. At stake is, in my view, no less than the issue of whether women's moral insights will change the law or the law will change the morality of women entering the profession. That is where we find ourselves today, and as Weinzweig's article demonstrates the legal and theoretical issues involved seem at times unfathomably complex. But in the end, this paradigm conflict will end as others do, with a leap of faith as to which model is better suited to chart a course into an uncertain future. The process is painful. The Miller- Wohl and California Federal cases have presented one of the most difficult and acrimonious problems confronted by the feminist legal community in many years. However, I cannot help thinking that through this conflict, as through such conflicts within any discipline, the shadows on the back wall of the cave will, in time, become just a little more like the people, objects and animals they reflect.

notes 1. In 1979, Miller-Wohl Co. of Great Falls, Montana, in line with its policy of denying sick leave during one's first year of employment, fired a recently-hired sales clerk who discovered she was pregnant and missed a few days of work due to morning sickness. The woman, believing she had been fired because of her pregnancy, filed a discrimination complaint with the Montana Human Rights Commission. Montana has a Maternity Leave Act (MMLA) which provides that it is unlawful to terminate a woman's employment because of her pregnancy or to refuse to grant her a reasonable leave of absence for such pregnancy. The Commissioner found that Miller-Wohl had violated the MMLA by firing the sales clerk rather than granting her an unpaid disability leave. Miller-Wohl then filed suit in federal district court maintaining that the MMLA was unconstitutional and in conflict with Title VII of the federal Civil Rights Act. The district court upheld the validity of MMLA, and Miller-Wohl appealed to the Ninth Circuit Court of Appeal. Ninth Circuit did not decide the case on the merits. Rather, it dismissed it on grounds that the district court did not have subject matter jurisdiction. The controversy which this case sparked within the feminist legal community is discussed in Kriegerand Cooney (1983, 515,516). In 1978, California amended its Fair Employment and Housing Act to require leave for a reasonable period not to exceed four months for employees disabled by pregnancy-or childbirth-related medical conditions. In 1983, California Federal Savings Association, et al., filed suit in federal court claiming that the California law violated Title VII and its Pregnancy Discrimination Act. The U.S. District Court in Los Angeles agreed with Cal. Fed.'s claim, but when the State appealed to Ninth Circuit, that ruling was reversed. Cal. Fed. has appealed to the Supreme Court. 2. In this piece, Ms. Cooney and I explored the liberal model of equality and at-

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linda j. krieger tempted to demonstrate that it is not, in and of itself, capable of solving many of the equality problems facing women and minorities in our society. 3. Cf. Kuhn (1970, 78, 83). 4. This phenomenon is described by Kuhn as characterizingthe crisis period in scientific paradigm development (1970, 88). The same resort to interdisciplinary analysis emerged at the peak of the Miller-Wohl crisis (Krieger and Cooney 1983, 547-557). 5. Cf. Kuhn (1970, 84-91). 6. Cf. Kuhn (1970, 145). 7. Reasonable accommodation theory rejects the proposition that equality can in all instances be effectuated through equal treatment, and requires the adjustment of certain work rules, job functions or schedules to accommodate disabled people's differences from the non-disabled majority. For examples of the types of modifications requiredunder reasonableaccommodation laws, see, e.g., Fair Employment and Housing, Cal. Admin. Code, tit. 2, R. 8293, 1982. 8. Cited in Gilligan (1982, 9). 9. Cited in Gilligan (1982, 10). 10. I do not mean to imply here that all women will approach ethical dilemmas through a morality of care, nor that all men will adhere to a morality of rights. What I do suggest, however, is that legal training tends vigorously to encourage the latter orientation. In my view, it has taken a tremendous influx of women into the legal profession even to begin to challengethe overwhelminglymale-centeredmoral ideology characterizing the profession. 11. I use the term "normative" here in its statistical sense. Used in this way, a "normative" sex difference refers to a statistical variance in the extent to which males, on the average, and females, on the average, exhibit a particular aptitude, interest, or characteristic, such as mathematical ability or physical strength. 12. For example, suppose a public high school with a scientifically-oriented curriculum attempted to restrict its student body to males only on the grounds that boys, as a group, perform better in math and science than do girls, as a group. Such a policy would be deemed impermissible under the liberal model of equality, which does not permit average differences between groups to be used in this manner. 13. As of 1979, women made up the majority of workers in a small number of occupations: nurses (96.7%); clericals (80.3%7);bank tellers (92.9%); cashiers (87.9%); secretary/typists (98.6%); dressmakers (95.4%); sewer/stitchers (95.3%7);and bookkeepers (91.1%) (Bureau of Labor Statistics (1980, Table 11). 14. The United States, in fact, stands alone among all other major industrialized nations, capitalist and socialist, in failing to guaranteewomen workers pregnancydisability and maternity leave and a cash benefit to replace wages. See Krieger and Cooney (1983, 519). 15. See, e.g., Regan (1979, 1569). 16. For a full discussion of this issue, see Krieger and Cooney (1983, 540-542). 17. It is interesting to recall in this regard Kuhn's claim that the observation of counterinstances will not of itself necessarily lead to paradigm change: other conditions must exist before a community is likely to accept a new paradigmto supplementor replace the old (Kuhn 1970, 77-83). 18. For the text of Judge Moylan's remarks in this regard, see Krieger and Cooney (1983, 544). 19. A narrative description of the events precipitating and manifesting that crisis is beyond the scope of this article. However, the interested reader can refer to a number of pieces appearing in varying legal periodicals during the height of the fray. E.g., see Williams (1982); Krieger and Cooney (1983); Kay (1985); Scales (1980-81, 375); Yale Law Journal Note (1985, 929). 20. The American Civil Liberties Union Women's Rights Project, joined by the National Organization for Women, Montana State NOW, the NOW Legal Defense and

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hypatia EducationFund,the NationalWomen'sLawCenter,the Women'sLegalDefenseFund, et al., filed Miller- Wohl v. Commissioner of Labor and Industry, Brief Amicus Curiae.

21. For example,the religiousdiscriminationprovisionsof Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. Section 2000e et. seq., and the physicalhandicap discriminationlaws of manyfederaland statelaws requirereasonableaccommodation of minorityreligiousobservancesand the handicapsof physicallydisabledemployees. For furtherdiscussionof this issue, see Kriegerand Cooney (1983, 558-559). a verytroublingissue.Anyequality 22. ProfessorWolgast'smodelleavesunaddressed theorythat permitsthe conferralof specialrightsbasedon differencesbetweengroups mustlogicallyallowthe impositionof specialburdensbasedon thosedifferencesas well. Wolgastrecognizesthisproblem,butin EqualityandtheRightsof Womenfailsto resolve it. However,a solutionto the "slipperyslopeof judicialstereotyping"problemwasproposedby ProfessorAnn Scalesin herlandmarkarticleTowardsa FeministJurisprudence (1980-81).For a thoroughdiscussionof Scales's"incorporationistapproach,"and its Federaldebate,seeKriegerandCooney(1983, contributionto theMiller-Wohl/California 563-564).

references Bureau of Labor Statistics U.S. Department of Labor. 1980 Perspectives on working women: A databook. Bulletin No. 2080. Einstein, Albert. 1949. Autobiographical note. In Albert Einstein: Philosopher-scientist, ed. P.A. Schillp. Evanston, Ill.: Library of Living Philosophers. Gilligan, Carol. 1982. In a different voice: Psychological theory and women's development. Cambridge: Harvard University Press. Kay, Herma Hill. 1983. Sex-based discrimination, 2nd edition. St. Paul, Minn.: West Publishing Co. .1985. Equality and difference: The case of pregnancy. Berkeley Women's Law Journal 1 (1): 1-38. Krieger, Linda J. and Patricia N. Cooney. 1983. The Miller- Wohl controversy: Equal treatment, positive action and the meaning of women's equality. Golden Gate University Law Review: 13 (3): 513-577. Kuhn, Thomas S. 1970. The structure of scientific revolutions, 2nd edition. Chicago: University of Chicago Press. Lever, Janet. 1976. Sex differences in the games children play. Social Problems 23: 478-487. Mill, John Stuart. 1970. The subjection of women. In Essays on sex equality, ed. Alice S. Rossi. Chicago: University of Chicago Press. National Academy of Science. Excerpt from Women, work and wages: Equal work for jobs of comparable value. The Comparable Worth Issue. Washington, D.C.: Bureau of National Affairs, November 7, 1981. Piaget, Jean. 1932. The moraljudgment of the child. Repr. 1965. New York: The Free Press. 60

linda j. krieger Regan, Donald H. 1979. Rewriting Roe v. Wade. Michigan Law Review 77 (7). Scales, Ann. 1980-81. Towards a feminist jurisprudence. Indiana Law Review 56. Williams, Wendy. 1982. The equality crisis: Some reflections on culture, courts, and feminism. Women's Rights Law Reporter 7 (3). Wolgast, Elizabeth. 1980. Equality and the rights of women. Ithaca: Cornell University Press. YaleLaw Journal Note. 1985. Employment equality under the pregnancy discrimination act of 1978. 94 (4).

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gale s. baker Is Equality Enough? I am concerned that, in our quest to end discrimination, we as feminists may be concentrating too much on equality and ignoring more basic issues of social justice. I argue that we must not lose sight of where we as a society are going in the effort to make sure we all get there together. The primarygoal, after all, is not simply for women to get what men have, but justice for all.

C ertainly no feminist would deny that we all seek the absence of discrimination; the problem as it traditionally has been conceived lies in the attainment of a clear and concise consensus as to what equality entails, and the means by which to achieve it. We have been presented two basic approaches: one which relies on an imperative of equal treatment, and another which feminist attorney Linda Krieger calls a "positive approach" (1983, 515) where equality of effect is taken to be paramount. Both seek equality of employment opportunity for women as a necessary condition for achieving social justice. I have no doubt that equality is an essential aspect of justice; we as feminists are rightly concerned to regard it as a legitimate end. But it is also a means. Equality, in this sense, is somewhat like the North Star: it is not itself our final destination. When we lose sight of that fact, when we focus our efforts at reform and determine remedial courses of action on the basis of equality alone, we ask of equality that it be not only a necessary condition for achieving social justice, but a sufficient condition as well. It is as if it doesn't matter wherewe are, as long we are all there together. Krieger's approach (this volume: pp. 45-61) is admittedly persuasive if one is centrally concerned with equality. We easily can see pregnant women as in a position similar to that of the wheelchair-bound individual in need of a ramp in order to enjoy free and equal access to public buildings. In this scenario no man will ever be in a position to require a ramp: they can just walk in. Only pregnant women are being denied access, and only women become pregnant. To use the language of the "bivalent" view (Krieger and Cooney 1983, 557), regarding pregnancy leave as a special right provides women the ramp they need in order to access an equal right already enjoyed by men. But such a picture is plausible only when equality alone is the carrot we dangle before ourselves. If we hold that our goal is some socially just model Hypatia vol. 2, no. 1 (Winter 1987). © by Gale S. Baker.

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hypatia of employment opportunity, we get quite a different picture. On this alternate model, what statutes like the Montana Maternity Leave Act are in effect doing is providing a ramp for pregnant women only, while denying access to countless others, male and female alike. We are all subject to temporary conditions which affect our ability to work. While it may be that a no-leave policy such as that in effect at Montana's Miller-Wohl Company (Krieger, this volume: note 1) is tantamount to a policy of dismissal for pregnancy, as Krieger suggests, it is also the case that it represents a policy of dismissal for temporary disabilities across the board. The appeal of Krieger's model rests on the assumption that the right to which women are being barred access is already enjoyed by men as a group. But this is highly suspect. Men and women alike might at some point require the use of a ramp; the difference lies solely in the fact that a woman, by virtue of her unique reproductive role, is statistically more likely to be the person in need. When we use the concept of equality unsupplemented by other considerations, the goal for women becomes to "get what the men have." The problem thus defined, we argue the case for allowing pregnancy special consideration in order to equalize statistics. Here we might say that under a no-leave policy men suffer a one in fifteen chance of losing their jobs because temporarilydisabled; woman, a one in ten. Where equality is paradigm, the goal is to alleviate the discrepancy; we seek, then, by means of litigation to insure that pregnancy will not further jeopardize women in relation to men. Krieger argues for granting a special right to provide women access to an equal right already enjoyed by men. But in the case of insufficient or no-leave policies the equal right men enjoy is merely the right to suffer, say, a one in fifteen chance of losing their jobs due to temporary disability. Is this what women want? Not all questions which concern feminists are of necessity questions of equality or discrimination. Not all such questions and issues need to nor should they be met with a factionalism which divides the class of human beings up into male and female. Krieger indicates that an important question facing the feminist attorney concerns the material needs of women in our society and what strategy can best meet those needs now (1983, 522). Defining such needs on the basis of equality is not necessarily the best strategy in all cases: it is very often the case that the material needs of working women are the same as the material needs of working men. It is not merely "what the men have" that is necessarily the end we want to work for. We might all agree that a woman should not lose her job simply because she becomes pregnant, but is it on the basis of equality that we feel this way? If men could become pregnant, if they did indeed suffer the possibility of incurring 64

gale s. baker this disability, would we be satisfied to see men and women losing jobs at an equal rate? When we argue the case for pregnancy leave on the basis of equality, instead of by some appeal to what is just, we hear that the reason women should not face the prospect of dismissal for pregnancy is only because men do not. Thus it is my concern that in the justifiable campaign to eliminate discrimination, we not let the notion of equality overshadow our concern for more basic issues of social justice. Equality should not be the primary or determinate factor in feminist political decision-making. I would like to emphasize that we need to keep ourselves oriented from a point of view of social justice; we need to take into consideration just what it is we want to be equals in.

references Krieger, Linda J. and Patricia N. Cooney. 1983. The Miller- Wohl controversy: Equal treatment, positive action and the meaning of women's equality. Golden Gate University Law Review 13 (3): 513-577. Krieger, Linda J. 1987. Through a glass darkly: Paradigms of equality and the search for a woman's jurisprudence. Hypatia 2 (1): 45-61.

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I

paul green The Logic of Special Rights Linda Krieger'spaper in this volume relies on the concepts of "equal" and "special" rights, and I focus my attention upon the bivalent view of equality which justifies the creation of special rights. Kriegerargues, I point out, that equality of effect is a fundamentally more just consideration than equality of treatment, and special rights allow disadvantaged groups to achieve this equality of effect.

Central to attorney Linda Krieger's paper (this volume: pp. 45-61) is the distinction between "equal" and "special" rights, and any attack on or defense of her position will entail some discussion of the viability of this distinction. My remarks here are an attempt to explicate the basis for making the distinction, and to describe some characteristics of the "bivalent" view (Kriegerand Cooner 1983, 557) which distinguish it from the traditional liberal view. I should emphasize that I will neither criticize nor defend the bivalent view; instead, I limit my task to describing the nature of its distinction from the liberal view and examining the logic that justifies the existence of special rights. Krieger's analysis of equality provides the foundation for her distinction between special and equal rights. Rather than accept the standard liberal doctrine that equality means the right to equal treatment, in an earlier paper (1983, 553-554) she suggests (following Ronald Dworkin) that a better model for equality involves the right to treatment as an equal. For her the crux is not equality of treatment but equality of effect, as Dworkin's illustrationwhich she presents as follows makes clear: Assume a person has two children, and one is dying of a disease which is making the other merely uncomfortable. In such a situation, if the parent has but one remaining dose of a drug, she does not divide it in half and treat the two children "equally." She gives the remaining dose to the dying child, hoping to keep them both alive. (Krieger and Cooney 1983, 553) As the example implies, the right to treatment as an equal-rather than equality of treatment-is the fundamental right. The liberal paradigm is actually a special case of the right to treatment as an Hypatia vol. 2, no. 1 (Winter 1987). © by Paul Green.

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hypatla equal-namely, one that is appropriate when equal treatment brings about equality of effect. If both children were equally ill, giving half of the remaining dose to each child-treating them equally-would be treating them, as best the parent could, with equal effect. One of the reasons for the historical dominance of the liberal view may be that the traditional doctrine, though a special case, was the most common one. When the earliest questions about rights and equality were being discussed, the debaters were almost exclusively white gentlemen landowners of the seventeenth and eighteenth centuries, and, among them at least, equal treatment did imply equality of effect. However, given the modern recognition of asymmetry between many social groups, it is reasonable to maintain that equality of effect is the proper measure of equality, and it is in order to rebalance the scales that the concepts of "equal" and "special" rights, borrowed from Elizabeth Wolgast, are introduced by Krieger. Equal rights are the basic ones; everyone has them, and everyone, presumably, has the same equal rights. Special rights are created in order to guarantee the possibility of exercising an equal right. For instance, to quote Krieger, ... every person is deemed to have an "equal" right of access to public buildings .... But, a disabled person in a wheelchair will be unable to exercise this "equal" right unless a ramp is provided ... equality is effectuated only if the disabled person is granted a "special" right to a ramp. (This volume: p. 56) Krieger suggests that an analogy may be drawn between disabled people and pregnant women. A disabled person has the right of equal access to public buildings; a pregnant woman has the right to equal employment opportunity. But just as equal access is denied to the disabled person by virtue of her confinement to a wheelchair, equal employment opportunity is denied to the woman by virtue of the fact that she can become pregnant. A no-leave policy like that at issue in the MillerWohl case (Krieger, this volume: note 1) has an effect analogous to the effect that buildings without ramps has on the disabled-it denies women employment opportunities. Thus, if the disabled person has a special right to a ramp to assure rights of equal access, it follows that a pregnant woman should have a special right to return to her job after her pregnancy in order to assure protection of her right of equal opportunity for employment. There are three characteristics of the doctrine of special rights, and the bivalent view of equality it incorporates, which distinguish it from the liberal view: 68

paul green (1) It takes account of differences in the real world. The bivalent model insists that it is improper to compare two individuals stripped of their context. Circumstances are important, for they create real differences between people that the liberal dogma is unwilling and unable to recognize. Sex differences, for instance, are not illusory; women bear children and men don't. The doctrine of special rights relies upon the belief that people are not like peas in a pod, but ingredients in a tossed salad for which individualized treatment assures equality. (2) This recognition of differences among people eliminates the necessity of universalconformity to an implied ideal of the WASP ablebodied male as the member par excellence of society. It should not be necessary to adapt to this standard to be able to take full advantage of the opportunities society offers and rights it guarantees. (3) The doctrine of special rights is a pragmatic one; it asks what will achieve equality of effect among individuals, and then creates rights appropriate to this end. Thus, special rights change as society or circumstances change. For example, if job security were guaranteed to those suffering from any temporary disability, a special right of pregnant women to job security would be unnecessaary. The pragmatic approach of the doctrine of special rights leads to an open-ended question: "Where do special rights apply?", or more precisely, "What morally relevant differences among groups are sufficient to trigger the creation of a special right?" In an earlier paper (1983, 563), Krieger quite rightly points out the great potential for patriarchalabuse, and suggests a limiting principle (adopted from Ann Scales) which restricts the creation of special rights, at least in feminist cases, to conditions stemming from two sex-specific characteristics which are unique to women-pregnancy and breastfeeding. She insists that so-called "normative" differences-differences that typically exist between men and women but are not exclusive to either sex, such as the fact that men tend to be taller than women-are not germane. But the limiting principle raises as many questions as it answersquestions which the proponents of special rights need to recognize and reply to. One of the more important ones is: What are the implications of this approach for other problems of inequality-for instance, between age groups or ethnic groups? Some of Krieger'sremarks(1983, 553-554) reveal a profound dissatisfaction with the result in Regents of the University of California v. Allan Bakke (438 U.S. 265, 1978), yet the differences between blacks and whites that keep many blacks out of medical school are distinctly "normative." How can the bivalent model be applied to cases like Bakke,if at all? This question is crucial, for if the bivalent model cannot be applied to cases as numerous, diverse, and socially important as those dealing with racial or age 69

hypatia discrimination, then its claim to preeminence among models of equality is seriously jeopardized. It would begin to sound more and more like the special pleading on behalf of women qua women that Krieger adamantly and properly opposes (1983, 563). If the bivalent model cannot be universalized, instead of guaranteeing real equality among persons, it simply puts women on a legal pedestal.

references Krieger, Linda J. and Patricia N. Cooney. 1983. The Miller- Wohl controversy: Equal treatment, positive action and the meaning of women's equality. Golden Gate University Law Review 13 (3): 513-577. Krieger, Linda J. 1987. Through a glass darkly: Paradigms of equality and the search for a woman's jurisprudence. Hypatia 2 (1): 45-61.

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marjorie weinzweig Pregnancy Leave, Comparable Worth, And Concepts of Equality Pregnancyleaveandcomparableworthdealwithdifferencesbetween femaleand male employees.In each case feministsare dividedas to whetherspecialtreatmentfor womenwillpromoteequalityor reinforce in theworkplace.A radical sexstereotypes andgenderbasedsegregation of the workplaceis necessary,to makepossiblea more restructuring in terms humanlife for menandwomen.Thisrestructuring is articulated of the concepts of equality as "participation" or "incorporation"of all individualsinto a community,and androgyny.

/. Introduction

T his paper considers the philosophical implications for feminism of two current legal issues in the area of employment discrimination: (1) whether state laws which require employers to provide pregnant employees with a reasonable period of maternity leave violate the Federal Pregnancy Discrimination Act ("PDA") of 1978, and (2) whether employers legally are or should be required to pay employees in female dominated job classifications wages equal to the wages of employees in male dominated job classifications requiring comparable skill, effort and responsibility, and performed under comparable working conditions. Both issues are difficult legally, because they are not handled readily by the usual legal tools for dealing with sex discrimination: the Equal Protection Clause of the U.S. Constitution, Title VII of the Civil Rights Act, and the Equal Pay Act. These legal tools apply to situations in which men and women are or may be the same, but have been treated unequally on the basis of overbroad gender based generalizations or stereotypes (Frontiero v. Richardson, 1973). By contrast, pregnancy leave and pay equity concern areas where men and women are not "similarly situated," and where their lack of sameness is not (or not just) the result of differential conditioning through "overbroad generalizations." Hypatia vol. 2, no. 1 (Winter1987).© by MarjorieWeinzweig. 71

hypatla The pregnancyissue, now before the SupremeCourt on employer challengesto California and Montana laws, divides feminists over whetherthey shouldadvocate"specialtreatment"for womenbecause only they become pregnant.The comparableworth issue, which has now been rejectedby the federalcourtsin its broadestinterpretation, has arousedtremendousresistancefromemployersandeconomists,and is criticizedby some feministsas reinforcingsex stereotypesand impedingaffirmativeaction. The two issuesare relatedin that the handling of pregnancyin the work place is one major reasonwhy women earn less than men. Yet, "equal treatment"theorists are afraid of "specialtreatment"for pregnancybecausein the past such treatment has always meant exclusion, job segregationand lower pay. These two legal issues raise in particularlysharp focus important philosophicalissues concerningthe goals of the currentwave of the feministmovementand the role of the conceptof equalityin achieving those goals. The issue is that first formulatedby Alison Jaggar(1977, 1983):is the goal of feminismto admitthose womenwho qualifyinto the existing"male," capitalist,power structure,or is it to go further and changethe rules, criteriafor success, values and relationshipsof that structurein accordancewith female or more humanaspirations, values, needs and experience(Gilligan1982)?In this discussionsome thinkerswho believewe shouldgo furtherrejectthe conceptof equality as misleadingand not useful for the analysisof sexual oppression andits remedies,whileotherswouldalteror expandthe conceptbeyond its narrow interpretationas equal treatment for similarly situated individuals. This paperbeginsby summarizingthe currentstatusof the two legal issuesand the positionstakenby the respectivesides. It then sets forth the debateamong legal scholarsand philosophersover expandingvs. abandoningthe conceptof "equality"in dealingwith the two "frontier" issues.Severalalternativeformulationsof "equality"arediscussed: formallyequaltreatment,equalityof opportunity,equalityof result, and equal respect for persons shown by equality as participation in the

communityor equalityas acceptance.Thealternativeapproachof abandoning the concept of "equality" in favor of "substantiverights," "specialneeds"or "empowerment"of womenis considered.A theme common to theoristsof both persuasionsas well as to one versionof the "equal treatment"theory is pointed out: the need for a radical restructuringof employment,both in the "public" sphereand with regardto the divisionbetween"public" and "private"employment, in orderto createa more fully humanlife for both men and women. I arguethat the need for this restructuringimplies a differentmodel of "the good life" than that whichunderliesthe practicesof the exist72

marjorie weinzweig ing workplace. This model is based on a relational concept of human nature, as activity in a social world. It is articulated in terms of two concepts: equality as participation (Powers 1979) or incorporation (Scales 1980) and androgyny. The latter concept has been misunderstood by both the equality "expansionists" and the equality "rejectors" as enforced sameness. It can play an important role as representing the project of discovering truly human, as opposed to gender-based, values.

/I. PregnancyLeave and the Act PregnancyDiscrimination 1. The Problem Title VII of the Civil Rights Act (1964) prohibits employers from: ".... discriminat(ing) against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's sex . . . or . . . limit(ing), segregating, or classifying his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's ... sex". (42 U.S.C. 2000e 2 (a)(1) and (2)) Courts interpreting Title VII have articulated two different theories of prohibited discrimination. Disparate treatment involves the differential treatment of individualson the basis of their sex. Here it is necessary to prove that the employer's action was "motivated" by "discriminatory intent" (International Brotherhood of Teamsters vs. U.S., 1977). However, "facially neutral" employment practices which have an adverse or disparate impact on women and other protected groups are also prohibited even without intent to discriminate, unless they can be shown to be necessary to the safe and efficient operation of the business, or to safe and efficient job performance (Griggs v. Duke Power Co., 1971; Dothard vs. Rawlinson, 1977). In 1976, in General Electric Co. vs. Gilbert, the Supreme Court held that it did not violate Title VII for an employer to provide a disability insurance plan which excluded pregnancy. The Court reasoned that the plan did not exclude anyone from benefit eligibility because of gender, but merely removed one physical condition-pregnancy-from the list of compensable disabilities. The lack of identity between the excluded disability and gender could be seen by considering that the insurance plan divided potential recipients into two groups: pregnant 73

hypatla women and non-pregnant persons. While the first group is exclusively female, the second includes both men and women. The Court's decision followed its reasoning in an earlier case, Geduldig v. Aiello (1974), challenging the California State disability plan's exclusion of pregnancy under the Equal Protection Clause. In 1978 Congress amended Title VII to undo the Supreme Court's Gilbert decision. The amendment, called the Pregnancy Discrimination Act ("PDA"), specifies that the terms "because of sex" and "on the basis of sex" include "because of or on the basis of pregnancy," and requires that women affected by pregnancy be treated the same for all employment purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work. Thus an employer is obligated to offer pregnancy leave and benefits to its employees on the same basis as it offers sick leave or disability leave benefits to other temporarily disabled, nonpregnant, employees (42 U.S.C. 2000e (k); 29 C.F.R. Sec. 1610.10(c)). In 1978 California's Fair Employment and Housing Act ("FEHA") was also amended, to require that employees disabled by pregnancy, childbirth or related medical condition be allowed to take a leave for a reasonable period of time, not to exceed four months. Such a leave must be provided even if the employer does not provide four months' leave to employees disabled by some condition other than childbirth or pregnancy. Regulations pertaining to this section require that on her return from maternity leave, a woman must be returnedto her "original or substantially similar job," unless the employer can prove a bona fide occupational qualification or business necessity for refusing to do so. (Govt. Code Sec. 12945 (b) (2); Department of Fair Employment and Housing ("DFEH") Regulations, Sec. 7291.2.) In 1983 California Federal Savings Association ("Cal Fed") and two employer groups challenged the California law in federal court, on the grounds that the California statute, by requiring preferential treatment of female employees disabled by pregnancy, childbirth and related medical conditions, requires conduct unlawful under PDA and inconsistent with the purpose of Title VII to promote equal treatmentof males and females. In March 1984 Judge Real of the U.S. District Court in Los Angeles agreed with Cal Fed, ruling that the mandatory four months' leave requirement of the California FEHA conflicts with Title VII of the Civil Rights Act, because it requires preferential treatment of pregnant employees in the event that the employer's disability leave policies do not provide all employees with four months' leave with reinstatement to the same or similar position without loss of seniority or other benefits. The State of California appealed to the Ninth Circuit Court of 74

marjorie weinzweig Appeal, which in April 1985 reversed Judge Real, holding that the California law is not inconsistent with the PDA. The Court held that the California statute does not discriminate against males, "who do not get pregnant and whose total benefit package suffers no consequent dimunition" as a result of the leave extended to pregnant women (Caliifornia Federal Savings and Loan Association v. Guerra, 1985). The Court criticizedCal Fed's attempt "to measure equality of benefits by the sameness of coverage despite difference in need," instead of comparing "coverage to actual need, not... to hypothetical identical needs." The Court based its ruling on the "pluralistic" interpretation of equality in the pregnancy context advocated by Christine Littleton (1982) and Andrew Weissman (1983), infra, pointing out that the PDA does not require the states to be blind to pregnancy, a condition which is unique to women. It reasoned that the provision of maternity leave according to need is a means to achieving the purpose of Title VII: equality of employment opportunity. Thus, given the fact that only women become pregnant, different treatment according to need is required to assure equality, construed as equality of opportunity in employment. The Court distinguished its decision from cases involving laws or practices "that classify on the basis of purportedly sex-linked factors that are actually less biological than stereotypical": pregnancy is a real biological distinction between women and men. Cal Fed appealed the Ninth Circuit's decision to the Supreme Court, which had also agreed to hear a similar challenge to Montana's Maternity Leave Act, which provides that it is unlawful to terminate a woman's employment because of her pregnancy, or to refuse to grant her a reasonable leave of absence for such pregnancy (Mont. Rev. Codes Ann. Sec. 39-7-203, 1981). 2. Arguments Before the Supreme Court a. Against the California Pregnancy Leave Statute Feminists are divided on whether to support the California and Montana Statutes. The National American Civil Liberties Union (ACLU), the National Organization for Women (NOW), the National Women's Political Caucus (NWPC) and other groups filed amicus briefs agreeing with Cal Fed's argument that special treatment of pregnant employees reinforces the gender based stereotypes traditionally used to exclude women (NOW 1986; ACLU 1986). They point to the use of women's "protective legislation," which specified maximum hours, minimum wages and other working conditions for women only, to 75

hypatla depress women's wages and exclude them from the market place. To insist on special treatment is to reintroducethe Supreme Court's reasoning in the Geduldig and Gilbert cases.' Because the PDA's purpose is to break down sex stereotypes and reject Gilbert, Congress chose the "equal treatment" approach, whereby pregnancy is "de-mystified," and treated as any other temporary disability. (Petitioner's Brief 1986, 24-25, 42, 49; ACLU 1986, 7, 9, 18-19; NOW, 1986: 13, 17-18). According to Professor Wendy Williams, one of the authors of the NOW brief, equal treatment promotes the conceptual separation of child bearing from the gender neutral function of child rearing, thereby facilitating the breakdown of the traditional role models regarding parenting (Williams 1984, 343, 353-6). b. In Support of the California Statute The State of California and feminist groups filing amicus briefs in support of Government Code Sec. 12945 (b) (2) argue that the statute is consistent with Title VII under the latter's "disparate impact" analysis. They maintain that a policy of no or only a very short period of pregnancy leave has a "disparate impact" on women, because only women become pregnant. In support of this argument they cite a 1981 District of Columbia Appeals Court case, Abraham v. Graphic Arts International Union, in which pregnant temporary employees were entitled to only a ten day sick leave granted to other temporary employees. There the court concluded that the employer's failure to provide adequate maternity leave violated Title VII. The Court stated: While a ten-day leave undoubtedly would accommodate a wide range of temporary disabilities, it falls considerably short of the period generally recognized in human experience as the respite needed to bear a child. Thus . . any such job-holder confronted by childbirth was doomed to almost certain termination ... the ten-day absolute ceiling on disability leave portended a drastic effect on women employees of childbearing age-an impact no male would ever encounter. (Abraham v. GraphicArts International Union 1981, 819)2 Thus supporters of the FEHA argue that Title VII requires "accommodation" of pregnancy in order to eliminate the disadvantage which female employees otherwise face. Supporters of the California law give differing characterizations of the "disparate impact" faced by pregnant women whose employers fail to provide maternity leave: (1) The State and California Women Lawyers (CWL) argue that 76

marjorie weinzweig Title VII protects equality of employment opportunity ("EEO"). Where employees are not "similarly situated," EEO requires not equal treatment, but "different policies" involving "extra effort" to accommodate "special needs." Such "accommodation" is not illegal "special treatment" based on sex but is required to put pregnant women into a position of parity with men with regard to their employment opportunities (Brief of Respondents 1986, 19-21, 24, 32, 38; CWL 1986, 3-4, 15, 16-18, 20, 21-22). (2) The Coalition for Reproductive Equality in the Workplace ("CREW")3 argues that women who are denied maternity leave are burdened with a conflict between exercise of their constitutionally protected right to reproduce and exercise of their employment opportunities. The right to reproduce adheres to all employees, not just those who are already pregnant. It is "burdened" if an employee is forced to forego becoming pregnant or to have an abortion in order to keep her job, as well as if an employee is terminated because she chooses to continue her pregnancy. No man is ever faced with this conflict. Thus CREW argues that the "disparate impact" of inadequate maternity leave policies extends beyond working women who have babies (CREW 1986, 1-3, 7, 8, 12-14, 17-18, 22, 35-8, 44-5).

II/. "Comparable Worth"or "Pay Equity" 1. The Problem of Job Segregation and the Wage Gap The first stage of the current women's movement opened up for women many of the higher status and/or higher paid professions and crafts from which they were previously excluded. After more than a decade of such activity, the percentage of women in some of the "traditional male" fields has increased significantly (Nelson et al. 1980, n. 255; Golper et al. 1985, 111-112). However, most women are still entering and working in traditional "women's jobs" which are highly segregated by sex, low paying, and closely linked to women's "homemaking" role or to their socialization as "male helpmates" (Treiman and Hartman 1981, 25-28, 31-33; California Comparable Worth Task Force ("CCW") 1985, 8; Blumrosen 1979, 406, 413, 415-416). The pay gap between male and female employees has not changed in the last thirty years: women still make approximately 60%o of men's wages (Treiman and Hartman 1981, 13-16, 41; Treiman and Cheng 1985, 3; CW 1985, 7). Additionally, women in female dominated sex segregated jobs are "crowded" into a much smaller number of occupations and job classifications than are men in male dominated jobs (Blumrosen 1979, 405-6; Treiman and Hartman 1981, 40-1; CW 1985, B3).4 In segregated 77

hypatla jobs, the "return" on education and experience is much less for employees in "female" occupations than for those in "male" occupations. (Treiman and Hartman 1981, 28; Blumrosen 1979, 410, 414.) Female dominated jobs are also characterized by a lack of "career ladders" which provide for advancement with seniority and experience (Treiman and Hartman 1981, 48-9; Blumrosen 1979, 412). Women are more likely than men to be employed by low paying firms in the "secondary" segment of the labor force, where employment is characterizedby poor working conditions, less training, less job security, lack of promotional opportunities, arbitrary personnel practices, and more competition. Blumrosen (1979) suggests that the persistent pay gap is explainable by discriminationwhich goes with sex segregation of jobs. This explanation is also suggested by Treiman and Hartman (1981, 38-9, 56-7, 63-5, 93). See also CW (1985, 8-10). 2. The Remedy: "Comparable Worth" As A Way Of Achieving Pay Equity Affirmative action appears to be making slow progress in reducing the pay gap, but is not sufficient to remedy the problem (CW 1985, 9, B6). Blumrosen and Treiman point out that affirmative action opens up new jobs which go to new employees while those in segregated jobs stay where they are. Incumbents of sex segregated jobs such as nurses and librarians may have invested many years in their particular skills and may not wish to change fields in order to earn higher pay (Treiman and Hartman 1981, 67; Blumrosen 1979, 413). In addition, as Littleton points out, "the very women most damaged by an unequal social structure may be those about whom conventional assumptions are accurate, that is, those who have internalized society's limitations on their interests, abilities, and social roles" (Littleton 1982, n. 7). Such women may not be capable of becoming doctors or lawyers and may not wish to give up their exclusive responsibilitiesfor homemaking and childcare. Thus a remedy is needed for those who remain in the traditional jobs (CW 1985, 6-7). Treiman and Hartman call for ensuring "pay equity" by adjusting existing job evaluation methodology to remove sex and race as "compensable factors" (Treiman and Hartman 1981, 65-68). They suggest that job evaluation systems, while they may be biased, may, if corrected, be used to identify potential wage discrimination (Treiman and Hartman 1981, 12, 91). Treiman suggests that "multiple regressionanalysis" of an enterprise's pay system may be used to identify sex and race as compensable factors (Treiman and Cheng 1985, 8-10). Others wishing to remedy the pay gap advocate the identification of sex based pay in78

marjorie weinzweig equities through job evaluation systems and the adjustment of pay scales to correct such inequities (CW 1985, B11-13, 10, 15-16, 27, 31, 344).5 Given this political objective, the question arises of whether it can be achieved through litigation. The Equal Pay Act ("EPA") prohibits discrimination against employees on the basis of sex by paying different wages to employees performing jobs which require equal skill, effort and responsibility, and which are performed under similar working conditions (29 U.S.C. Sec. 206(d)). The jobs must be "substantially equal" to be covered. The EPA does not provide a remedy for women who are trapped in low-paying, sex-segregated jobs which are not the same as those performed by men. The question therefore arises of whether failure to provide equal pay for jobs which are not substantially the same, but which require comparable skill, effort, and responsibility and are performed under comparable working conditions, or which can otherwise be determined to be of comparable value to the employer, is a violation of Title VII of the Civil Rights Act. It is now clear that while the federal courts will find violations of Title VII under the disparate treatment theory where there is evidence of intentional discrimination in the maintenance of segregated pay scales for male and female "comparable" jobs (Gunther v. Co. of Washington (1981); IUE v. Westinghouse (1981); Taylor v. Charley Bros (1981)), they will refuse to find a violation in the mere failure to remedy an identified pay gap between sex segregatedjobs. A number of courts have recently refused to apply the "disparate impact analysis" to the "neutral" practice of setting wages according to prevailing market rates, holding that "following the market" is not the kind of specific, clearly delineated, single employment practice to which the "disparate impact" Title VII theory applies. These courts have reasoned that since the employers did not create the market, they should not be required to rectify its discriminatory features, and that it is not the proper function of the courts to "restructurethe economy." (AFSCME v. State of Washington (1983); Spaulding v. University of Washington (1984); AFSCME v. State of Washington, (1985); American Nurses Association v. State of Illinois, (1986); Christensen v. State of Iowa (1977); Lemons v. City and County of Denver, (1978); Lemons v. City and County of Denver, (1980).) The AFSCME, Spaulding and American Nurses decisions have also greatly narrowed the circumstances under which "discriminatory intent" may be established in the context of a large public employer's wage setting practices. It is now necessary for plaintiffs to demonstrate 79

hypatla that the employer engaged in systematic discriminatory practices which have as their aim the exclusion of women. Statistical disparities, "isolated incidents" of admitted discrimination and failure to remedy a pay gap between members performing jobs identified as having comparable value to the employer do not by themselves establish "discriminatory intent."6 Despite the demise of the disparate impact analysis in comparable worth claims and the strictureson proof of discriminatoryintent, litigation continues. The AFSCME v. Washington case was settled after the Ninth Circuit's adverse decision by a six year $482 million agreement to phased-in pay increases, which remedy the identified wage discrepancies to within 5% of the identified "value line" for male jobs. Unions continue to sue public employers on the "discriminatoryintent" theory, pointing to connections between the employer's present wage scales and earlier overtly sex and race based assignment to jobs, pay scales and discrimination in other personnel practices such as promotions. In addition, a number of states have passed legislation calling for studies of their job classification and compensation systems to rectify disparitiesbetween wages of male and female jobs of comparable value.7 (See also CW 1985, 31-2; 34-35.) There has also been considerable activity to implement comparable worth by collective bargaining, mostly in the public sector and universities.8 3. Arguments Against "Comparable Worth" a. Employer Perspectives (1) Comparable Worth Would Interfere with Job Integration Employers argue that equality of opportunity, represented by gender integraton of higher paying jobs, is the aim of Title VII and the proper goal of the women's movement, not equality of result. If the wages of women's traditional jobs are "artifically" raised, women will stay in those jobs rather than moving to "non-traditional" jobs offering more job mobility and greater long range advancement potential. People who choose to work in jobs with fewer hours, less responsibility or an oversupply of workers do not deserve higher wages (Golper et al. 1985, 24-5, 94-104; Nelson et al. 1980, 295-6; California Employment Law Council ("CELC") 1985). These employers assume that the existing pay structure is what it should be, and urge more vigorous enforcement of existing discrimination laws and affirmative action provisions which would remove barriers to women's moving into presently higher paying jobs. 80

marjorie weinzweig (2) Comparable Worth Would Interfere with the "Market" Employers and economists give two different sets of reasons why the "market" should not be interfered with: (a) The market is: employers are still subject to it, and if they are forced to pay higher wages to their workers, various catastrophic economic dislocations will follow, all to the detriment of those whom comparable worth is supposed to help (Nelson et al. 1980, 291-4; Golper et al. 1985, 41-44, 47, 71, 75-6, 79-80, 82, 83, 887-9, 9203, 111, 125). (b) The market is what should be: It is the way wages and prices should be set, because it represents certain basic values centering around "freedom." Market prices express "liberty of exchange, association and contract" (Levin 1984, 19; Golper et al. 1985, 42). (3) Employers should not be required to remedy conditions which they did not cause. Women have less "work force attachment." They freely choose the lower paying jobs which allow them to work fewer hours and fixed hours and to leave the market for periods of time for child rearing and then re-enter, and which do not require travel or relocation (Nelson et al. 1980, 239, 259; Golper et al. 1985, 15, 68; Briggs vs. City of Madison 1982, n. 6; Treiman and Hartman 1981, 53). Or, if these "choices" are due to a "discriminatory cultural milieu," it is not the job of either employers or the courts to remedy the general social conditions which lead women to make such choices (Briggs v. Madison 1982, 748). b. Radical Critique of Comparable Worth Christie (1985) has recently argued that the "meritocratic" version of comparable worth appears to validate the existing pay standards in our society, with their emphasis on "individual achievement" through formal schooling and the acquisition of credentials. In addition, the technique of using job evaluation systems to ascertain the "worth" of female jobs will not help the large percentageof women in what Treiman calls the "secondary economy," the women who work only part time and the women who are unemployed. Shrage (1986) replies to Christie that comparable worth goes beyond classical liberalism in proposing to set wages by job evaluation studies rather than by the market, and in providing 81

hypatia tools which lend themselves to an analysis of the value of housework.

IV. The Conceptof Equality:Its Meaningsand Uses Comparable worth, like pregnancy, concerns the situation of women who are not similarly situated to men: women in traditionally female, segregated jobs who are not candidates for "affirmative action" programs which would move them into male-dominated jobs. These employees deserve to be compensated fairly-that is, comparably to individuals in male dominated jobs. They also deserve and need a decent living wage in return for their labor. As in the case of pregnancy leaves, equal treatment by existing socio-economic standards may produce unequal results. 1. Abandoning Equality Because equal treatment leads to unequal results where women and men differ, but asking for special treatment may open the door to disadvantageous exclusionary treatment which will impede progress towards the changes women desire, some thinkers advocate abandoning or supplementing "equality" with a different value concept in articulating feminist goals. a. Wolgast: "Special Rights" and "Equal Rights" Wolgast (1980) believes that the classic liberal concept of "equal rights" as "equal treatment" of similarly situated persons is not adequate to address the concerns of women, because women's role in childbearing makes them very different from men. For Wolgast the fact of in utero pregnancy puts a mother into a different "logical relation" to the child than that of the father; this asymmetrical relationship is a valid biological basis for the ascription of the role of "primary parent." Being the primary parent in turn affects how women look at their lives with respect to education, life and career plans, and values in a sexual relationship (durability and stability). In all of these respects, women have different needs and concerns from men.9 If the "equality" ideal is basic, there will be no room for pregnancy and childbirth; women will either be disadvantaged or made to become more like men. Wolgast therefore maintains that "justice" requiresdifferent treatment for the two sexes: a fair "balance" between different roles based on legitimate sex differences (Wolgast 1980, 108, 156-7). Women's rights are based on their needs; a fair society accommodates its institutions to the human condition in recognition of needs. Wolgast proposes a "bivalent" view of society, which distinguishes the "special rights" of women and other rights based on "special needs," and "equal rights." The latter are basic human rights such 82

marjorie weinzweig as free speech, freedom of religion, and the right to vote, which do not depend on the equality of persons but are "an expression of the respect in which we hold individual humans" (Wolgast 1980, 16, 41-2, 47-52). The differences between persons are irrelevant to their possession of equal rights, whereas "special rights" depend on the differences between individuals. Wolgast relates her emphasis on "special rights" based on needs to the rejection of an "atomistic" egalitarian model of society based on individual satisfaction of self-interested desires. Instead she proposes a model of society analogous to family, following Aristotle, in which human connections and inter-dependence are central (Wolgast 1980, 16-17, 138-141). b. Westen and Karst: Is Equality Useful? Westen (1982) claims that "equality" and "inequality" are logically posterior to claims of substantive rights, such as the rights to be free of certain kinds of injuries. It is impossible to say whether two people are the same or different without reference to some standard which is presupposedin such claims and on which the claims of "equality" turn. To phrase claims about the underlying rights in terms of the equality of persons may be misleading, because the nature of the underlying right is then not clarified, and the tendency is to assume that people who are alike in one respect are alike in others. This leads to erroneous conclusions because the "equality" label "gives a rhetorical aura of 'revealed truth' to the rights and standards it incorporates" (Westen 1982, 540-2, 547-50, 563-4, 575-9, 581-2, 592-3). Karst (1983) replies to Westen that the idea of "equality" does have both content and a valuable use in the civil rights struggle. The content of the ideal is the presumptive right of each person to be treated by society as a respected, responsible, participatingmember, regardless of the differences between persons. The values it represents are therefore the values of citizenship: respect for persons, and participation in and responsibility to the community. An individual attains her identity and a sense of self respect from belonging to and responsibly participating in the community. The chief harm represented by the absence of equality is degradation and the imposition of stigma caused by the denial of equal membership in the community (Karst 1983, 247-8, 286; Karst 1983, 2722-4, 277-80, 283-5). For example, the wrong suffered by blacks denied service at lunch counters is not denial of food but stigmatization as not fully human, as unequal in general. This ideal has a significant historical meaning in the United Sates, whose history Karst characterizes as that of the "inclusion" of various kinds of "outsiders" (religious minorities, the unpropertied, former slaves, 83

hypatia and ethnic immigrant minorities) as full fledged members of society (Karst 1983, 249-271, 287-8). c. Empowerment MacKinnon (1979) focusses her radical feminist analysis on gender based power relationships of dominance and submission, rather than on gender differences (MacKinnon 1979, 120-7; 1983, 635, 640;1984, 20, 26-7). She argues that the real issue is the hierarchy of power, not whether women are "like" men and should be treated equally, or unlike them and therefore in need of special protection. Men are the standard in the market place on either of the latter alternatives: the workplace is structured according to the male biography, and in accordance with male criteria such as "objectivity" and "competition." The search for a "neutral" standpoint such as "disability leave" is itself sex-loaded, for "neutrality" and "objectivity" are values of the dominant male culture. The social creation of gender, whereby women are defined and the entire social reality constructed from the male viewpoint, is the "epistemological" means by which male dominance is maintained. Feminism is therefore the struggle for women's consciousness: the uncovering of women's experience and voice. In this process, we take women as they now are (MacKinnon 1983, 636-9, 652-5; 1984, 29). The state is a "gender hierarchy," institutionalizingmale control over female sexuality through its handling of abortion and rape. The separation of the private and public spheres by the state maintains the subordination and oppression of women in the "privacy" of the family, where women are confined and kept separate from each other (MacKinnon 1983, 643-50, 652, 657; 1984, 29-30). Feminism therefore must politicize the private sphere, must change the standards by which women are measured, and must "empower" women, eliminating their social inferiority and subordination. Affirmative action, rejected by "equal treatment" theorists on principles of formal equality, is one means to such empowerment (MacKinnon 1979, 118-119). MacKinnon's analysis does not forsake "equality" in the sense of "equality of power" but merely in the sense of "alike" vs. "different." 2. Expanding the Concept of Equality a. Equality as "accommodation" In the case of pregnancy feminists are divided over whether, given women's unique biological role, equality in the workplace requiresequal treatment or special, differential, treatment. If the latter, the question 84

marjorie weinzweig arises as to what concept of "equality" is involved and what type of differential treatment it justifies. Krieger and Cooney (1983) argue that "positive action" in "accommodating" sex differences is necessary in order to achieve a goal which is variously described as "equality of opportunity" and "equality of effect" (Krieger and Cooney 1983, 537, 552, 557). They advocate modification of institutions to accommodate sex differences and equalize the competitive positions of the parties, in the same way that handicapped employees and employees with religious restrictions must be accommodated under existing discrimination laws (Krieger and Cooney 1983, 557-8, 565). They criticize the liberal, "equal treatment" model as "assimilationist": as accepting males as the norm in the market-place, and dismissing differences between men and women as illusory or to be minimized (Kriegerand Cooney 1983, 538, 556-7, 561). Weissman (1983) argues that there are two different interpretations of the PDA, which coincide with the "assimilationist" vs. "pluralist" models of equality. The "pluralist" model emphasizes that equality is not inseparable from identity, but acknowledges the differences between the sexes in a non-hierarchical context. "Pluralism" compensates for the disability imposed on women by pregnancy, where the sexes are not similarly situated, and authorizes different treatment in order to reach comparable outcomes (Weissman 1983, 695-701, 709, 726). Like Krieger and Cooney, Weissman speaks indiscriminately of both equality of opportunity and equal outcome, and equates his "pluralist" approach with the disparate impact analysis of Title VII (Weissman 1983, 713-14; n. 118). Accommodation is also adopted, for biological differences only, by Law (1984) and Kay (1985, 1986), who advocate equal treatment except in the area of pregnancy and related conditions. b. Equality as "incorporation" Williams (1984), one of the authors of the NOW brief, sharply criticizes Krieger and Cooney's and Weissman's "accommodation" or "compensation" model, arguing that analogizing pregnancy treatment to "accommodation" of "handicpaped" individuals keeps the male model intact. Those who must be "accommodated" are seen as less desirable and less than normal; because of the special costs involved the employer will tend to exclude or discriminate against such persons. The "accommodation" of mothers preserves the traditional family roles whereby both "pregnancy" and "parenting" are viewed as private, thereby marginalizing women. Instead Williams calls for an androgynous approach which would break down the traditional male - female role models regarding parenting and treat child rearing 85

hypatla as a gender neutral function (Williams 1984, 343, 353-6). This implies reorganizing work in the family and encouraging equal responsibility for childrearing by mothers and fathers (Williams 1984, 367-9, 371, 343, 353-4, 360-1, 367-8). She refers to her (equal treatment) scheme as an "incorporationist" solution which "acknowledges the mutual stake of women and men workforce participants in certain basic protections" (Williams 1984, 374). Scales (1981) also advocates not merely "accommodation" of pregnancy and breastfeeding but changing our institutions to incorporate the full range of human activities, both male and female. The differences between men and women should be taken into account in such a way that pregnancy and breastfeeding are incorporated into the social continuum, to reflect the realities of women's lives. In this way women will be enabled to lead lives which are integrated, not bifurcated between career and procreation. The institution of motherhood would be restructured so that women are no longer treated as less than human with respect to pregnancy; workplace institutions would be restructured with equal respect for the differences between the sexes, and for women's procreative choices (Scales 1981, 427, 436-7, 442). Scales proposes a number of specific changes in the institutions and practices of employment, affecting both men and women, in order to restructure the patriarchal institutions which bifurcate and undermine the experience of women (Scales 1981, 438-442; infra: 28-9). Williams (1984) distinguishes Scales' "incorporation" approach from Krieger and Cooney's "accommodation." The latter defines women as men plus pregnancy: a special burden. "Incorporation," by contrast, requires the reorganization of the workplace with respect to the way the presence of working women is understood (Williams 1984, 367-8). c. Equality as "participation" Powers (1979) advocates a "participatory perspective" to equality in place of formal equality of legal rights. Formal equality is based on an "individualistic" ideology which stresses competition for individual self interest. In the latter value system occupational and educational achievement define the worth of the individual; if the competition is "fair" then "merit" justifies unequal treatment. The competitive ideology justifies the continued exclusion of most women while recognizing particular"aspirational" women who achieve, because "the demanding, all consuming nature of competitive occupational striving" creates a need for surrogates. Surrogates take care of personal maintenance, childbirth, child care, and the selection and consumption of "merit" goods (Powers 1979, 89-90, 93-4, 98). Women 86

marjorie weinzweig are suitable for surrogate status because of their childbearing role; thp other functions are stigmatized as not suitable for a man. However, women's surrogate functions interfere with their own occupational participation: it is because they assume the responsibility for unpaid work at home that they are "less attached to the labor market." When they do participate in the public sphere they are segregated into occupations where they perform surrogate functions: for example, clerical positions, where a surrogate-type devotion to the boss is required. Women are regarded as "suited" for these positions, which are often not part of the employer's formal organizational structure, and lack promotional opportunities (Powers 1979, 96-8,104-5). To achieve equal participation of men and women in all social activities, Powers proposes a restructuring of social arrangements whereby the segregation of women in the private sphere is ended and all individuals are regarded as active interrelated participants in a cohesive community involved in common social undertakings. A different concept of equality goes with this program: the inherent personal worth or dignity of each person, which entitles him or her to equal respect, independent of occupational "merit" (Powers 1979, 101-6, 124). To this end, Powers suggests realigning the terms of work in the public sphere along the lines proposed by Scales, so that both women and men can take responsibility for housework and child care. Powers also advocates that private sphere work involving provision of various services be recognized as equivalent in importance to public sphere work, for individuals of both sexes (Powers 1979, 105-110). d. Equality as "acceptance" Littleton (1986) promulgates the most radical of the expanded equality models, the one which comes down most clearly on the side of equality of effect. Littleton adopts Karst's (1983) reasons for not wanting to abandon the equality ideal: the importance that ideal gives to the theme of "belonging," "counting as human," or "acceptance in the community." At the same time Littleton sees the difficulty pointed out by MacKinnon (1979) and others with the work of Wolgast and Gilligan (1982): if women's current "voice" is the voice of the experience of domination, we do not want to assume that the female "values" and "concerns" elucidated by Wolgast and Gilligan, which result from women's experience of segregation in the private sphere, are the values women would choose without subordination. It can be expected that women's "voice" will change as they become free, and any reconstruction of equality must take into account that we do not know what women will become and what their values will be as the movement towards equality continues. 87

hypatia Littleton also agrees with MacKinnon that our present concept of "equality" is "phallocentric," reflecting male domination of the state and society, and needs to be "reconstructed," along with our other basic norms and values, in order to be useful as a device to end women's oppression (Littleton 1986, 49-50, 60-1, 67-8). As a method in that reconstruction Littleton proposes the model of equality as "acceptance": that the differences among people not make a difference to their "lived out equality." The proposal is neither to minimize gender difference nor to assume that existing gender differences are "natural" or "inevitable," but to make gender difference "costless," in order to facilitate the choice by individuals of a male, female or androgynous lifestyle without punishment or reward. By making differences "costless," it will be possible to see the true values of the socially female and socially male (Littleton 1986, 35, 52-3). Littleton would "apply equality across differences": to gendered complements deemed to merit equal social rank. All such complements should be rewarded equally, "whatever the coin." For example, all culturallyencoded opposite male and female jobs would be paid equally; male and female sports would be supported equally; and "caring"Gilligan's value-should be rewarded equally with "self reliance," its opposite. The method is a procedure for formulating new norms by doing something which will cause activities and characteristics to be experienced differently (Littleton 1986, 42-5, 53-5, 70-1, 77). By making difference costless, Littleton would break down the devaluing of the "female." Men and women would then find out what they want to be. New combinations of attributes and new modes of existence would arise. For example, when dependence and independence are valued equally, the value of inter-dependencewill be revealed (Littleton 1986, 95-101).

V. Conclusion All of the feminist commentators on the two legal issues agree on the need to "go further" than the present socio-economic structurewith its "male" values, in order to end women's oppression. Although the theoretical tools they advocate for this purpose are different, the commentators are in remarkable agreement on the ends to be achieved: on the kind of restructuring of work, family life, and life generally which is called for at this stage of the women's movement. This writer shares that vision (Bishop and Weinzweig 1979, xi), and believes that the restructuring in question is necessary in order to achieve the ends of the women's movement. This section will articulate the different model of human happiness or the "good life" (Plato 1956; 1964) which I 88

marjorie weinzweig believe underlies the called-for changes, and the values which are implied in that conception. I will discuss: (1) What that vision of the good life involves. (2) The conception of human nature upon which that vision is based. (3) Which value concepts, both moral and more general, are best suited to its justification, including: (a) Which equality concept, if any (b) Which other value concepts. 1. Happiness as self-actualization through social activity The changes called for by these feminists imply a different model of human happiness, in turn based on a different model of selfactualization than that of classical "liberal" theory. The classical "liberal" view, aptly characterized by Powers and Krieger, is exemplified by the positions of the "feminist" critics of comparable worth (CELC 1985; Golper et al. 1985). These commentators favor more vigorous affirmative action, which would open up the existing employment structure to women and minorities, but oppose comparable worth, which challenges the values of that structure by questioning its criteria for rewarding work. The model of the good worker who deserves success in the existing employment structure is the individual who is ambitious, hard working, competitive, and willing and able to devote 200% of his time and energy to his career. Although the persons who have filled these roles in the past have been almost exclusively males, affirmative action implies that any females who are able and willing should be permitted to enter the competition for these positions as well. However success in these high ranking highly paid positions is inconsistent, in terms of both time and energy and requisitepersonality characteristics,with child rearing, quality interpersonal relationships, and the pursuit of any other activities besides career. On the new model, a different kind or kinds of life would be valued, together with different personality characteristics, for both men and women. This model would take into account all human needs: accomplishment in work, the relational satisfactions of child rearing, family and friendship, and recreation as self development through the pursuit of a variety of interests and activities. It would provide for the living of a fully human life, by making it possible for individuals to participate in the full range of human activities of which they are capable, the participationin which is constitutive of their identity (Marx 1961). This alternative model of the good life is based on a different concept of the self than is the "good" of classical liberalism. On this view, 89

hypatla the self is not an independent "mental substance" identifiable in isolation from its relations to things other than it, but is (ontologically) a relation to an intersubjective, social-physical world. The individual's relation to persons and social objects other than herself, in work, sexuality, reproduction and other forms of social life, is constitutive of her identity (Marx 1961, 95-103, 181-2; Merleau-Ponty 1962, Part I; Weinzweig 1986, 8-9). There can be no self-fulfillment for an individual who is "cut off" from the range of these possibilities. Instead, the self is "actualized" or "developed" through typical activities in the social world, in various kinds of relationshipsto other persons in work, family, recreation and other situations. This is recognized in different ways by Wolgast, Karst, Littleton and Powers (who stresses that a "hero worker" is made possible by a "surrogate"). Relational self-actualization, the basic value of the new model, requires not competition against others in which one wins at others' expense or domination of others in a socio-economic power hierarchy, but appropriately fulfilling relationships with others. These relationships are based on equality of respect for individuals' different contributions and activities in work and other social pursuits, on interdependence rather than domination and submission, and on free choice of activity rather than activity based on sexual stereotypes. While freedom from sexual stereotypes which limit one's choice of activities is a typical "liberal" concept, the view that these activities require egalitarian, cooperative, relations with others goes far beyond the classical liberal concept of self-actualization. I have argued elsewhere that nourishing relationships with others are possible only between autonomous persons who are capable of healthy dependency relationships involving interdependency rather than unhealthy dependency relationships based on domination and control (Weinzweig 1986). "Autonomous" persons in this (relational) sense are in turn possible only in social and economic conditions which make possible economic security and self respect, as Powers and Karst stress. Having one's work adequately compensated, recognized and valued is an important aspect of those conditions. Quality relationships between adults are possible only if there is equality, of power and of dependent needs, between them. Thus comparable pay for men's and women's work, whether in or out of the home, is a pre-condition of quality relationships. The comparable worth movement therefore plays a significant role in completing the economic and social conditions necessary to the move to the next stage of the women's movement. 2. Reorganization of the workplace and of the place of work in life In the workplace the new model requires and should lead to major 90

marjorie weinzweig changes, suggestedby a numberof the commentators: (1) Differentcharacteristicsand functionswould be valued on the job. (a) The skills exercisedby women in traditionallysex segregated jobs, both professional and non-professional, will be properly recognizedand compensated.Comparableworthstudiescan be an effective tool for identifyingsuch previouslyunrecognizedskills.'0 (b) Differentways of doing the same job will be recognizedand valued. For example, today female attorneysmay be more inclined than the traditionalmale, "aggressive"attorneyto deal with their adversariesthrough "conciliation," "mediation," or seeking innovative "inclusive"solutions, and to relateto both adversariesand clientsout of understandingof the feelingsof each (see, e.g. MenkelMeadow 1986). (2) The heroic, all-encompassingdevotion to the job, exemplified by the seventyto eightyhour work week in privatelegal practiceand big business,wouldno longerbe requiredor valued.The shorterwork week,togetherwithflexiblehoursanddaysof work,andthe full status, highly paid part time job, would enable parentsto spend more time rearingtheir children,without havingto give up theirjobs. In addition it would allow workersto have time and energyfor other pursuits and activitiesbesidesworking.This in turnwouldmakeworkers less vulnerable,both economicallyand psychologically,in the event of loss of jobs. The shorterwork week would also createmorejobs. (3) The new model also requires,and the above workplacechanges imply, that differentweightsbe given to the job vs. the rest of life. (a) As stressedby Scales, Powers and Williams,the integration of work and family responsibilitieswould be promoted by such measuresas job sharing,the part-timehigh statusjob, maternityand parentalleave and adequatechild care. (b) Co-parentingby both parents, made possible by the above changesin job practices,would becomethe social norm. It would be encouragedthroughsocial approvaland its opposite discouraged. (c) Workin the home, done by membersof eithersex, would be recognizedand properlyvalued,as calledfor by Powersand Littleton. Thesechangesallow us to see that the comparableworthmovement does indeed have radicalimplications.Managementrespondsto the comparableworthmovementthat the existinglegal machineryis adequateto remedypay discrimination,providedthat affirmativeaction is more vigorouslyenforcedand child care provided.This is the existing, "meritocratic"systemmademore accessibleto women. Comparableworth rejectsthe existing"meritocratic"systemof compensation and instead suggeststhat the work of employeeswho do not 91

hypatla choose or are unable to enter the competition but perform "supporting" roles needs to be properly recognized and compensated whether they are male or female. Women will no longer have to be superachievers to earn a decent wage. As Shrage argues, comparable worth not only advocates a revamping of the criteria for deciding how jobs are paid, but, even more radically, advocates a change in how the nature and value of work is to be understood. With the reorganization of the workplace to allow for inclusion of family responsibilities, more value would be placed on quality relationships, for both men and women. Men (and professional women) would no longer be able to escape from responsibility for their relationships with spouse and chidren by the necessity to work seventy hours per week to "support the family." In this process of changing values, MacKinnon and Littleton are right about our current lack of knowledge of what women's (and men's) "values" will be once the economic, social, political and psychological conditions of their oppression change. While we need to start with those values as they now are, the new feminist goals must be conceived in terms of a process which will allow for evolution. Without these changes, the central goal of the women's movement will not be achieved. That goal is to allow individuals, both male and female, to live fully human lives, participating, regardless of gender, in the range of activities of which humans are capable, the performance of which is constitutive of human identity. The current organization of work makes the "human" ideal of self fulfillment impossible, because individuals' choices of activities are still inhibited by the structuring of the workplace according to what Powers calls the (male) "hero" model. In addition, there can be no self-fulfillment if all individuals are cut off from one half of their possibilities on the basis of gender specific norms which prescribe the opposite characteristics which all men and women must have in order to be true or "natural" instances of their gender. 3. An "androgynous" workplace In this evolutionary process towards the conception of a better life for men and women the concept of "androgyny" is not an impediment but a valuable conceptual tool. Androgyny has been misunderstood by theorists such as Wolgast and Littleton as "enforced sameness," with strong suspicions that the male personality ideal would predominate (Wolgast 1980, 32, 95, 108, 125, 129, 131; Littleton 1986, 22, 33). The ideal of androgyny is based on the notion of getting rid of sex stereotypes, and instead choosing one's values (moral and more general) 92

marjorie weinzweig based on their genuine usefulness. Androgyny involves freedom from sex stereotypes and freedom to choose on more genuine grounds, whether these grounds be moral, prudential, or what is conducive to human happiness in the broadest sense (Warren 1982, 173; Pielke 1982, 190)." Androgyny thus does not imply that all differences between the sexes must be eradicated. Instead it urges that values be chosen by each member of both sexes on the basis of what best promotes that person's self-actualization and goals rather than on the arbitrarybasis of gender. Values so chosen might be called "human values" as opposed to "gender based" values (Pielke 1982, 190). Some characteristics may turn out to be desirable, either morally or prudentially, for everybody, or for everybody who wishes to engage in certain activities, to have. Some such general ideals are implied, for example, in encouraging males as well as females to be active parents: there are some characteristics, such as compassion, patience, and sensitivity which it is desirable for any child rearer, whether male or female, to have. Similarly, if women are urged to abandon their powerlessness and find their "voice," it is implied that it is better for everyone to be in charge of her own life and thought than to be at the mercy of others, economically, physically and with respect to her own self conception. Thus, when sex stereotypes are rejected, some characteristics, such as compassion and self-assertiveness, might turn out to be desirable goals for members of both genders, while others, such as interest in sports or interest in fashion or art, might be "optional."'2 Even the validity of the former type of universal ideals for both men and women, however, does not imply that these ideal personality characteristics must be manifested in the same way in both men and women. Just because their bodies and voices are different, for example, a woman's assertiveness in a confrontational situation may be very different from a man's, although both may be effective. The androgynous person is thus the person who chooses goals and values on the basis of genuine usefulness. It can be expected that as values are so chosen, men and women will come to share more basic values than they did when values were assigned on the basis of gender. This does not imply however, that males and females must be forced to be, or will be expected to turn out, the same. Rather, as Littleton suggests, their real differences will be known for the first time. The "androgynous person" is thus not a mandatory ideal which all persons are required to emulate regardless of their individual proclivities. To adopt androgyny as an ideal is to formulate the enterprise of discovering what qualities are desirable, morally and for the best life, when one abandons the assumption that such qualities must be dictated by gender.'3 93

hypatla Thus androgyny promotes human self actualization, in my relational sense. The workplace changes outlined above "androgynize" the workplace in that they make possible a broader choice of occupational and life roles by individuals irrespective of their gender. 4. What Concept of Equality? Although the feminist commentators examined herein all agree that the "equal treatment" model, narrowly interpreted, is inadequate as a theoretical basis for the necessary restructuring of the workplace to include women, and that the concept of "equality" must be expanded, supplemented, or replaced in order to arrive at a value principle adequate to formulate the desired changes, none of these thinkers has actually abandoned the ideal of equality. Wolgast supplements it with "special rights" while MacKinnon focusses on equalizing women's power. I agree that some concept of equality is needed to explicate the vision of feminism set forth in this paper. This is seen by the following considerations: (1) As suggested above, quality relationships require equality of psychological power rather than dependence and submission of one partner to the other. But equality of psychological power requires an approximate economic and political equality between the partners. (2) The argument for comparable worth is based on the concept of equality, both as "fairness" and as "freedom from discrimination": from the devaluing or making invisible of workers' contributions because of their "ineradicable status" (Karst, supra). Equality of effect is neither a plausible goal nor a useful concept for the justification of the view of feminism set forth herein. It is highly implausible to suggest equalization of all rewards (salary, prestige, etc.) to all workers in society. Littleton's model comes the closest of the views examined in this paper to actually advocating equal distribution. However she does not (and probably cannot) provide a clear statement of the principle which would allow us to identify "gendered complements" unambiguously, nor is she clear on exactly what constitutes equal rewards for the members of the "complements" which she identifies. Littleton is not interested in equality of rewards for its own sake, however, but as a tool which will lead to a restructuring of the social world without gender-based norms. Equal distribution is a method which she hopes will lead to the latter result, which is also the goal of my "relational self-actualization" ideal. Scales' concept of equality as "incorporation" and Powers' notion of equality as "participation" are the two versions of equality most suited to the elaboration of the ideal suggested in this paper. These 94

marjorie weinzweig thinkers propose to "incorporate" parenting and other functions now performed in the "private" sphere without pay and recognition into the public sphere, where they would be recognized and appropriately valued and rewarded. In addition the terms by which the formerly "private" vs. "public" work has been performed will be realigned so that it will be possible and desirable for individuals to perform work of both types. Behind these changes lies a recognition of both the interrelated participation of all workers in the community and of the equal respect owed to each person, regardlessof occupational "merit." Karst stresses the right to equal paticipation of each citizen in the political community; the analyses of Scales and Powers expand the concept of "participation" to the economic and social spheres. There they advocate an egalitarian as opposed to meritocratic system of recognition and rewards for work. Thus the value of equal participation supplements the value of self development through social activity as a basis for the workplace changes which are now necessary to achieve the goals of feminism.

notes I am grateful to Bonnie Phan for her heroic efforts in typing the manuscript ---. after work, and to my husband, Professor Malcolm Gordon, whose assumption of the cooking, shopping and other household duties made it possible for me to write this paper while working full time as an attorney. Ann Garry, Betty Safford and Malcolm Gordon made invaluable editorial suggestions. Sections II and III have been substantiallycut. Copies of the longer versions of these sections, containing a more detailed exposition of the legal issues and arguments, can be received by contacting the author through Professor Betty Safford, Department of Philosophy, California State University Fullerton. 1. The ACLU and NOW groups therefore ask the Supreme Court to extend the California and Montana pregnancyleave provisions to all temporarilydisabled employees. This position is rejected by Cal Fed. 2. The Abraham court and State of California also refer to the language of an EEOC regulation adopted after the passage of the PDA, which states: Where the termination of an employee who is temporarily disabled is caused by an employment policy under which insufficient or no leave is available, such termination violates the Act if it has a disparate impact on employees of one sex and is not justified by business necessity. (29 C.F.R. Sec. 1604.10(c)) 3. The CREW brief is authored by Professor ChristineLittleton and the Los Angeles Feminist Legal Scholars, and representsBetty Friedan, a number of unions and women's groups, several California legislators, and two prominent officers or former officers of the Southern California ACLU. 4. Nationally, a 1981 Department of Labor Report showed that more than 80°7o of all women workers were employed in only 71 of 400 occupations categorized by DOL; three quarters of all working women were crowded into only twenty occupations of the 425 classified by the Department. Fifty percent of all employed women were concentrated

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hypatia in just four occupations: registered nurse, clerk, retail seller, and teaching (California Department of Fair Employment and Housing ("DFEH") 1984, 11). 5. Some commentators refer to the latter program as "comparable worth," and to the former as "pay equity" (Treiman and Cheng 1986; Shrage 1986, 13). 6. In AFSCME and Illinois Nurses the Courts adopt the Feeney constitutional standard for Title VII disparate treatment cases. Personnel Administrator of Massachusetts v. Feeney (1979). The Feeney test represents a regression from a Wittgensteinian, intersubjective conception of intention, in the Court's earlier decisions, focussing on the actions of the individuals and the contexts in which they occur, to a Cartesian "inner mental event" conception. Feeney makes proof of discrimination virtually impossible, because it is impossible to determine whether a legislature "aimed at" as opposed to merely foresaw, the exclusion of women and minorities which results from its policies (Weinzweig 1983, 318-322). 7. Such legislation has been passed, for example, in Minnesota, New York and Oregon. See Cook (1984; 1985); National Committee on Pay Equity (1984). 8. Report of California State Bar Labor and Employment Section,Committee on Comparable Worth (1986). Comparable worth was a key issue in collective bargaining for clerical employees leading to strikes at Yale and Columbia Universities in 1984-5. 9. Wolgast falls prey to huge leaps of reasoning in concluding, from women's unique role in childbearing, that women must be the primaryparents, uncritically assuming the validity of existing sex roles regarding parenting and sexual relationships. Once the child is born, there is absolutely no more reason for assigning responsibility for its care to the biological mother than to anyone else who is around and willing to care for it. There is less reason to assign care to the mother if she is unwilling to care for it and a grandmother, father, friend, or foster parent is. It is most harmful to women to characterize them normatively as "nurturing": the woman who does not have these feelings, whether or not she is a biological mother, is then stigmatized as "unnatural," "abnormal." Even if the mother does assume primary responsibility for her child and it is assumed that it is desirable to have a male parent around, it does not follow that this needs to be the biological father. What is needed is a male who is willing to commit himself to a responsible, caring role in relation to the child, not neceessarilyto the mother. Wolgast needs to look more critically at the dependent stance she ascribes to women as natural vis a vis their sexual partners: to encourage this attitude may also be most detrimental to women's interests. 10. One example is the "levels of stress" which must be coped with in certain phone operation and receptionist jobs. These were revealed by a 1980 AT&T pilot "comparable worth" study. (National Committee on Pay Equity 1984, 61-64). 11. Moulton and Rainone (1982, 222-3) set forth an alternative justification of androgyny in breaking down sex roles: ending the oppression and subordination of women. 12. Trebilcot (1975) suggests two alternative concepts of androgyny: "monoandrogynism" postulates a single ideal incorporating the best of both the traditional female and the traditional male characteristics for everybody; "polyandrogynism" focusses on a variety of options, from traditional "masculinity" through traditional "femininity" with all possibilities in between. 13. As Warren (1982) and Beardsley (1982) point out, the ideal of androgyny can be formulated only with reference to the gender based stereotypes which it is defined as rejecting. This does not mean, however, that the concept must be rejected as fatally self-contradictory, as Beardsley maintains. Instead the concept is valuable as a provisional "stepping stone toward clearer and more accurate theories of human personality and development" (Warren 1982, 182-3). As Hegel and Sartre teach us, it is characteristic of all revolutionary ideals that they are defined in terms of the state of affairs which they seek to overcome.

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references I. Articles and Books Beardsley, Elizabeth Jane. 1982. On curing conceptual confusion: Response to Mary Anne Warren. In "Femininity, " "masculinity" and "androgyny", ed. M. Vetterling Braggin. Totawa: Rowman and Littlefield. Bishop, Sharon, and Marjorie Weinzweig. 1979. Philosophy and women. Belmont, Calif: Wadsworth. Blumrosen, Ruth. 1979. Wage discrimination, job segregation and title VII of the civil rights act of 1964. University of Michigan Journal of Labor Reform 12: 396-502. California Comparable Worth Task Force. 1985. Report to the legislature. California Comparable Worth Task Force. 1985. Comparable worth task force report background information. California Employment Law Council. 1985. Why CELC supports pay equity, job mobility, affirmative action and nondiscrimination in employment, but opposes the controversial concept of comparable worth. California State Bar, Law and Employment Section, Ad Hoc Committee on Comparable Worth. 1986. Report to the section. California Department of Fair Employment and Housing. 1984. Discussion materials on the subject of pay equity for women and comparable worth. Christie, Drew. 1985. Comparable worth and distributivejustice. Read at Radical Philosophy Association meeting, 4/24/86, Chicago, Ill. Cook, Alice. 1984. Developments in selected states. In Comparable worth and wage discrimination, ed. Helen Remick. Philadelphia: Temple University Press. ---. 1985 Comparable worth. Industrial Relations Center, Univerof Hawaii, Honolulu. sity Gilligan, Carol. 1982. In a different voice: Psychological theory and women's development. Boston: Harvard University Press. Golper, John, Pamela Hemminger, and Susan Zepeda. 1985. Comparable worth pay methodology should not be legislated in the state of California: A report to the California legislature. Held, Virginia. 1982. The obligations of mothers and fathers. In "Femininity," "Masculinity" and "Androgyny", ed. M. Vetterling Braggin. Totawa: Rowman and Littlefield. Jaggar, Alison M. 1977. Political philosophies of women's liberation. In Philosophy and Women, eds. S. Bishop and M. Weinzweig. Belmont: Wadsworth. 97

hypatla 1983. Feminist politics and human nature. Totowa: Rowman -----. & Allanheld. Karst, Kenneth L. 1983. Why equality matters. Georgia Law Review 17 (2): 245-289. Kay, Herma Hill. 1985. Models of equality. University of Illinois Law Review: 39-88. ---. 1986. Equality and difference: The case of pregnancy. Berkeley Women's Law Journal 1 (1): 1-38. Krieger, Linda J. and Patricia N. Cooney. 1983. The Miller-Wohl controversy: Equal treatment, positive action and the meaning of women's equality. Golden Gate University Law Review 13 (3): 513-577. Law, Sylvia A. 1984. Rethinking sex and the constitution. University of Pennsylvania Law Review 132: 957-1040. Levin, Michael. 1984. Comparable worth: The feminist road to socialism. Commentary September 1985: 13-19. Littleton, Christine A. 1982. Toward a redefinition of sexual equality. Harvard Law Review 95: 487-508. -----. 1986. Reconstructing sexual equality. Draft in circulation. MacKinnon, Catharine A. 1979. Sexual harassment of working women. New Haven: Yale University Press. 1983. Feminism, Marxism, method and the state: Toward ---. feminist jurisprudence. Signs 635-658. MacKinnon, Catharine A. et al. 1984. Feminist discourse, moral values and the law: A conversation. Buffalo Law Review 34:11-87. Marx, Karl. 1961. Economic and philosophical manuscripts. Trans. T.B. Bottomore. In Marx's Concept of Man ed. E. Fromm. New York: Ungar Publishing Co. Merleau Ponty, Maurice. 1962. The phenomenology of perception. Trans. Colin Smith. London: Routledge and Kegan Paul. Menkel-Meadow, Carrie. 1986. Portia in a different voice. Berkeley Women's Law Journal 1 (1): 39-63. National Committee on Pay Equity 1984. The cost of pay equity in public and private employment. Nelson, Bruce A., Edward M. Opton, Jr., Thomas E. Wilson. 1980. Wage discrimination and the "Comparable Worth" theory in perspective. University of Michigan Journal of Law Reform 13 (2): 233-3-1. Pielke, Robert G. 1962. Are androgyny and sexuality compatible? In "Femininity," "Masculinity, "and "Androgyny, "ed. M. Vetterling Braggin. Totawa: Rowman and Littlefield. Plato, 1956. Apology. Trans. F.J. Church. In Euthyphro, Apology, Crito. New York: Liberal Arts, Bobbs-Merrill. 98

marjorie weinzweig .1964. The Republic. Trans. H.D.P. Lee. Baltimore: Penguin. Powers, Kathryn L. 1979. Sex segregation and the ambivalent directions of sex discrimination law. 1979 Wisconsin Law Review: 55-124. Scales, Ann. 1980-81. Towards a feminist jurisprudence. Indiana Law Review 56. Moulton. Shrage, Laurie. 1986. Some implications of comparable worth. Read at Radical Philosophy Association Meeting, Chicago, Ill. Trebilcot, Joyce. 1975. Two forms of androgynism. In Feminism and Philosophy, eds. M. Braggin, F. Elliston, & J. English. Totawa, N.J.: Littlefield Adams. Treiman, Donald J. and Phyllis W. Cheng. 1985. California comparable worth task force minority report. Treiman, Donald J. and Heidi I. Hartmann. 1981. Women, work, and wages: Equal pay for jobs of equal value. Washington, D.C.: National Academy Press. Warren, Mary Anne. 1982. Is androgyny the answer to sexual stereotyping? In "Femininity," "Masculinity" and "Androgyny" ed. M. Vetterling Braggin. Totawa, N.J.: Rowman and Littlefield. Weinzweig, Marjorie. 1983. Discriminatory impact and intent under the equal protection clause: The supreme court and the mind-body problem. Law and Inequality: A Journal of Theory and Practice 1 (2): 277-339. ----. 1986. Should a feminist choose a marriage-like relationship? Hypatia 1 (2): 139-160. Weissman, Andrew. 1983. Sexual equality under the pregnancy discrimination act. Columbia Law Review 83: 690-726. Westen, Peter. 1982. The empty idea of equality. Harvard Law Review 95 (3): 537-596. Williams, Wendy W. 1984. Equality's riddle: Pregnancy and the equal treatment/special treatment debate. Review of Law and Social Change XIII: 325-380. Wolgast, Elizabeth H. 1980. Equality and the rights of women. Ithaca: Cornell University Press. II. Cases Abraham v. Graphic Arts International Union 660 F. 2d 811 (D.C. Cir. 1981) AFSCME v. State of Washington 33 FEB 808 (W.D. Wash. 1983) AFSCME v. State of Washington, 770 F. 2d. 1401 (9th Cir. 1985) American Nurses Ass'n v. Illinois Daily Labor report 42-D-1 (7th Cir. Feb. 18, 1986) Briggs v. City of Madison 28 FEP (W.D. Wisc. 1982) 99

hypatla California Federal Savings v. Guerra 34 FEP 562 (C.D. Cal. 1984) California Federal Savings v. Guerra 758 F.2d 390 (9th Cir. 1985), cert. granted, 106 S. Ct. 783 (1986) Christensen v. Iowa, 563 F.2d 353 (8th Cir. 1977) Frontiero v. Richardson, 411 U.S. 677 (1973) Dothard v. Rawlinson, 433 U.S. 321 (1977) Geduldig v. Aiello, 417 U.S. 484 (1974) General Electric Co. v. Gilbert, 429 U.S. 125 (1976) Griggs v. Duke Power Co., 401 U.S. 424 (1971) Gunther v. Co. of Washington 452 U.S. 161 (1981) International Brotherhood of Teamsters v. United States 431 U.S. 324 (1977) IUE v. Westinghouse 631 F.2d 1094 (3rd Cir. 1981) Lemons v. City and County of Denver 17 FEP 906 (D. Colo. 1978) Lemons v. City and County of Denver 620 F. 2d 228 (10th Cir. 1980) Palmer v. Thompson, 403 U.S. 217 (1971) Personnel Administrator of Massachusetts v. Feeney, 442 U.SA. 256 (1979) Spaulding v. University of Washington 740 F.2d 686 (9th Cir. 1984? Taylor v. Charley Bros. 25 FEP 602 (W.D. Pa. 1981) Statutes and Regulations Federal Equal Pay Act, 29 U.S.C. sec. 206 (d) Title VII of the Civil Rights Act, 42 U.S.C. sec. 2000e Pregnancy Discrimination Act, 42 U.S.C. sec. 2000e (k) Federal Regulations 29 C.F.R. 1610.10 (c) State Cal. Gov't Code sec. 12945 (b) (2) Mont. Code Ann. sec. 39-7-203, 1981 State Regulations California Fair Employment and Housing Commission Regulation sec. 7291.2 Briefs California Federal Saving and Loan Ass'n v. Guerra, on Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit

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Brief for the Petitioners, April 4, 1986 Brief of Respondents, June 12, 1986 Brief of the American Civil Liberties Union, the League of Women Voters of the United States, the League of Women Voters of California, The National Women's Political Caucus and the Coal Employment Project, Amici Curiae. Brief Amici Curiae of the National Organization for Women; NOW Legal Defense and Education Fund; National Women Lawyers' Division, Washington Area Chapter; National Women's Law Center; Women's Law Project; and Women's Legal Defense Fund In Support of Neither Party. Brief of Amici Curiae California Women Lawyers; Child Care Law Center; Jessica McDowell; Lawyers Committee for Urban Affairs; Mexican American Legal Defense and Educational Fund; Women Lawyers Association of Los Angeles and Women Lawyers Association of Sacramento. Brief of Amioci Curiae Coalition for Reproductive Equality in the Workplace: Betty Friedan; International Ladies' Garment Worker's Union, AFL-CIO; 9 to 5, National Association of Working Women; Planned Parenthood Federation of America, Inc. et al.

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nancy fraser Women, Welfare and The Politics of Need Interpretation I argue that social-welfare struggles should become more central for feminists. To clarify these, I offer an analysis of the U.S. welfare system. I expose the system's underlying gender norms and show how administrativepractices preemptively define women's needs. I then situate these state practices in a larger terrain of struggle over the interpretation of social needs where feminists can intervene.

W hat some writers are calling "the coming welfare wars" will be largely wars about, even against, women. Because women comprise the overwhelming majority of social-welfare program recipients and employees, women and women's needs will be the principal stakes in the battles over social spending likely to dominate national politics in the coming period. Moreover, the welfare wars will not be limited to the tenure of Reagan or even of Reaganism. On the contrary, they will be protracted wars both in time and in space. What James O'Connor (1973) theorized nearly fifteen years ago as "the fiscal crisis of the state" is a long-term, structural phenomenon of international proportions. Not just the U.S., but every late-capitalist welfare state in Western Europe and North America is facing some version of it. And the fiscal crisis of the welfare state coincides everywherewith a second long-term, structuraltendency: the feminization of poverty. This is Diana Pearce's (1979) term for the rapidly increasing proportion of women in the adult poverty population, an increase tied to, inter alia, the rise in "femaleheaded households." In the U.S., this trend is so pronounced and so steep that analysts project that, should it continue, the poverty population will consist entirely of women and their children before the year 2000 (Ehrenreich and Piven 1984). This conjunction of the fiscal crisis of the state and the feminization of poverty suggests that struggles around social-welfare will and should become increasingly focal for feminists. But such struggles raise a great many problems. Some of these, like the following, can be thought of as structural: On the one hand, increasing numbers of women depend directly for their livelihoods on social-welfare programs; and many others benefit indirectly, since the existence of even a minimal and Hypatia vol. 2, no. 1 (Winter 1987). © by Nancy Fraser.

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hypatla inadequate "safety net" increases the leverage of women who are economically dependent on individual men. Thus, feminists have no choice but to oppose social-welfare cuts. On the other hand, economists like Pearce (1979), Nancy Barrett (1984) and Steven Erie, Martin Rein and Barbara Wiget (1983) have shown that programs like Aid to Families with Dependent Children actually institutionalize the feminization of poverty. The benefits they provide are system-conforming ones which reinforce ratherthan challenge basic structuralinequalities. Thus, feminists cannot simply support existing social-welfare programs. To use the suggestive but ultimately too simple terms popularized by Carol Brown (1981): If to eliminate or to reduce welfare is to bolster "private patriarchy," then simply to defend it is to consolidate "public patriarchy."'T

Feminists also face a second set of problems in the coming welfare wars. These problems, seemingly more ideological and less structural than the first set, arise from the typical way in which issues get framed as a result of the institutional dynamics of the political system.2 Typically, social-welfare issues are posed as follows: Shall the state undertake to satisfy the social needs of a given constituency and to what degree? Now, this way of framing issues permits only a relatively small number of answers; and it tends to cast debates in quantitative terms. More importantly, it takes for granted the definition of the needs in question, as if that were self-evident and beyond dispute. It therefore occludes the fact that the interpretationof people's needs is itself a political stake, indeed sometimes the political stake. Clearly, this way of framing issues poses obstacles for feminist politics, since at the heart of such politics lie questions like, what do various groups of women really need, and whose interpretations of women's needs should be authoritative. Only in terms of a discourse oriented to the politics of need interpretation3 can feminists meaningfully intervene in the coming welfare wars. But this requires a challenge to the dominant policy framework. Both sets of problems, the structuraland the ideological, are extremely important and difficult. In what follows, I shall not offer solutions to either of them. Rather, I want to attempt the much more modest and preliminary task of exploring how they might be thought about in relation to one another. Specifically, I want to propose a framework for inquiry which can shed light on both of them simultaneously. Consider that, in order to address the structural problem, it will be necessary to clarify the phenomenon of "public patriarchy." One type of inquiry which is useful here is the familiar sort of economic analysis alluded to earlier, analysis which shows, for example, that "workfare" 104

nancy fraser programs function to subsidize employers of low-wage, "women's work" in the service sector and thus to reproduce the sex- segmented, dual-labor market. Now, important as such inquiry is, it does not tell the whole story, since it leaves out of focus the discursive or ideological dimension of social-welfare programs. By the discursive or ideological dimension, I do not mean anything distinct from or epiphenomenal with respect to welfare practices; I mean, rather, the tacit norms and implicit assumptions which are constitutive of those practices. To get at this dimension requiresa meaning-orientedsort of inquiry, one which considers welfare programs as, among other things, institutionalized patterns of interpretation.4Such inquiry would make explicit the social meanings embedded within welfare programs, meanings which tend otherwise simply to go without saying. In spelling out such meanings, the inquiry I am proposing could do two things simultaneously. First, it could tell us something important about the structure of the U.S. welfare system, since it might identify some underlying norms and assumptions which lend a measure of coherence to diverse programs and practices. Second, it could illuminate what I called "the politics of need interpretation," since it could expose the processes by which welfare practices construct women and women's needs according to certain specific and in principle contestable interpretations, even as they lend those interpretations an aura of facticity which discourages contestation. Thus, this inquiry could shed light on both the structural and ideological problems identified earlier. The principal aim of this paper is to provide an account of this sort for the present U.S. social-welfare system. The account is intended to help clarify some key structural aspects of male dominance in welfarecapitalist societies. At the same time, it is meant to point the way to a broader, discourse-oriented focus which can address political conflicts over the interpretation of women's needs. The paper proceeds from some relatively "hard," uncontroversial facts about the U.S. social-welfare system (section I) through a series of increasingly interpreted accounts of that system (sections II and III). These culminate (in section IV) in a highly theorized characterization of the welfare system as a "juridical-administrative-therapeutic state apparatus" (JAT). Finally, (in section V) the paper situates that apparatus as one actor among others in a larger and highly contested political field of discourse about needs which also includes the feminist movement. Long before the emergence of welfare states, governments have defined legally secured arenas of societal action. In so doing, they have at 105

hypatla the same time codified corresponding patterns of agency or social roles. Thus, early modern states defined an economic arena and the corresponding role of an economic person capable of entering into contracts. More or less at the same time, they codified the "private sphere" of the household and the role of household head with dependents. Somewhat later, governments were led to secure a sphere of political participationand the correspondingrole of citizen with (limited) political rights. In each of these cases, the original and paradigmatic subject of the newly codified social role was male. Only secondarily and much later was it conceded that women, too, could occupy these subjectpositions, without however entirely dispelling the association with masculinity. Matters are different, however, with the contemporary welfare state. When this type of government defined a new arena of activity-call it "the social"-and a new societal role, the welfare client, it included women among its original and paradigmatic subjects. Today, in fact, women have become the principal subjects of the welfare state. On the one hand, they comprise the overwhelming majority both of program recipients and of paid social service workers. On the other hand, they are the wives, mothers and daughterswhose unpaid activities and obligations are redefined as the welfare state increasingly oversees forms of caregiving. Since this beneficiary-social worker- caregiver nexus of roles is constitutive of the social-welfare arena, one might even call the latter as feminized terrain. A brief statistical overview confirms women's greater involvement with and dependence on the U.S. social-welfare system. Consider first women's greater dependence as program clients and beneficiaries. In each of the major "means-tested" programs in the U.S., women and the children for whom they are responsible now comprise the overwhelming majority of clients. For example, more than 81 % of households receiving Aid to Families with Dependent Children (AFDC) are headed by women; more than 60%7of families receiving food stamps or Medicaid are headed by women; and 70% of all households in publicly owned or subsidized housing are headed by women (Erie, Rein, Wiget 1983; Nelson 1984). High as they are, these figures actually underestimate the representation of women. As Barbara Nelson (1984) notes, in the androcentric reporting system, households counted as femaleheaded by definition contain no healthy adult men. But healthy adult women live in most households counted as male-headed. Such women may directly or indirectly receive benefits going to "male-headed" households, but they are invisible in the statistics, even though they usually do the work of securing and maintaining program eligibility. Women also predominate in the major U.S. "age-tested" programs. 106

nancy fraser For example, 61.6% of all adult beneficiaries of Social Security are women; and 64% of those covered by Medicareare women (Erie, Rein, Wiget 1983; Nelson 1984). In sum, because women as a group are significantly poorer than men-indeed they now comprise nearly twothirds of all U.S. adults below the official poverty line-and because women tend to live longer than men, women depend more on the socialwelfare system as clients and beneficiaries. But this is not the whole story. Women also depend more on the social-welfare system as paid human service workers-a category of employment which includes education and health, as well as social work and services administration. In 1980, 70% of the 17.3 million paid jobs in this sector in the U.S. were held by women. This accounts for onethird of U.S. women's total paid employment and a full 80% of all professional jobs held by women. The figures for women of color are even higher than this average, since 37% of their total paid employment and 82.4% of their professional employment is in this sector (Erie, Rein, Wiget 1983). It is a distinctive feature of the U.S. social-welfare system, as opposed to, say, the British and Scandinavian systems, that only 3% of these jobs are in the form of direct federal government employment. The rest are in state and local government, in the "private non-profit" sector and in the "private" sector. But the more decentralized and privatized character of the U.S. system does not make paid welfare workers any less vulnerable in the face of federal program cuts. On the contrary, the level of federal social-welfare spending affects the level of human service employment in all sectors. State and local government jobs depend on federal and federally-financed state and local government contracts; and private profit and non-profit jobs depend on federally financed transfer payments to individuals and households for the purchase of.services like health care in the market (Erie, Rein, Wiget 1983). Thus, reductions in social spending mean the loss of jobs for women. Moreover, as Barbara Ehrenreich and Frances Fox Piven (1984) note, this loss is not compensated when spending is shifted to the military, since only 0.5% of the entire female paid workforce is employed in work on military contracts. In fact, one study they cite estimates that with each one billion dollar increase in military spending, 9500 jobs are lost to women. Finally, women are subjects of and to the social-welfare system in their traditional capacity as unpaid caregivers. It is well known that the sexual division of labor assigns women primary responsibility for the care of those who cannot care for themselves. (I leave aside women's traditional obligations to provide personal services to adult males-husbands, fathers, grown sons, lovers-who can very well 107

hypatla care for themselves.) Such responsibility includes child care, of course, but also care for sick and/or elderly relatives, often parents. For example, a 1975 British study cited by Hilary Land (1978) found that three times as many elderly people live with married daughters as with married sons, and that those without a close female relative were more likely to be institutionalized, irrespective of degree of infirmity. As unpaid caregivers, then, women are more directly affected than men by the level and character of government social services for children, the sick and the elderly. As clients, paid human service workers and unpaid caregivers, then, women are the principal subjects of the social-welfare system. It is as if this branch of the state were in effect a "Bureau of Women's Affairs."

I1 Of course, the welfare system does not deal with women on women's terms. On the contrary, it has its own characteristicways of interpreting women's needs and positioning women as subjects. In order to understand these, we need to examine how gender norms and meanings are reflected in the structure of the U.S. social-welfare system. This issue is quite complicated. On the one hand, nearly all U.S. socialwelfare programs are officially gender neutral. Yetthe system as a whole is a dual or two-tiered one; and it has an unmistakable gender subtext.5 There is one set of programs oriented to individuals and tied to participation in the paid workforce, for example, unemployment insurance and Social Security. These programs are designed to supplement and compensate for the primary market in paid labor power. There is a second set of programs oriented to households and tied to combined household income, for example, AFDC, food stamps and Medicaid. These programs are designed to compensate for what are considered to be family failures, generally the absence of a male breadwinner. What integrates the two sets of programs is a common core of assumptions, underlying both, concerning the sexual division of labor, domestic and non-domestic. It is assumed that families do or should contain one primary breadwinnerwho is male and one unpaid domestic worker (homemaker and mother) who is female. It is further assumed that when a woman undertakes paid work outside the home this is or should be in order to supplement the male breadwinner's wage and so it neither does nor ought override her primary housewifely and maternal responsibilities. It is assumed, in other words, that society is divided into two separate spheres of home and outside work and that these are women's and men's spheres respectively.6 These assumptions are increasingly counterfactual. At present, fewer 108

nancy fraser than 15% of U.S. families conform to the normative ideal of a domicile shared by a husband who is the sole breadwinner, a wife who is a fulltime homemaker and their offspring. Nonetheless, the separate spheres norms determine the structure of the social-welfare system. They determine that it contain a primary labor market-relatedsubsystem and a family or household-related subsystem. Moreover, they determine that these subsystems be genderlinked, that the labor market-relatedsystem be implicitly "masculine" and the family-related system be implicitly "feminine." Consequently, the normative, ideal-typical recipient of primary labor marketoriented programs is a (white) male, while the normative, ideal-typical client of household-based programs is a female. This gender subtext of the U.S. welfare system is confirmed when we take a second look at participation figures. Consider again the figures just cited for the "feminine" or family-based programs, which I earlier referred to as "means-tested" programs: more than 81% of households receiving AFDC are female-headed, as are more than 70% of those receiving housing assistance and more than 60% of those receiving Medicaid and food stamps. Now recall that these figures do not compare female vs. male individuals, but rather female vs. male headed-households. They therefore confirm four things: 1) these programs have a distinctive administrative identity in that their recipients are not individualized but familialized; 2) they serve what are considered to be defective families, overwhelminglyfamilies without a male breadwinner; 3) the ideal-typical (adult) client is female; and 4) she makes her claim for benefits on the basis of her status as an unpaid domestic worker, a homemaker and mother, not as a paid worker based in the labor market. Now contrast this with the case of a typical labor market-based and thus "masculine" program, namely, unemployment insurance. Here the percentage of female claimants drops to 38%, a figure which contrasts female vs. male individuals, as opposed to households. As Diana Pearce (1979) notes, this drop reflects at least two different circumstances. First, and most straightforwardly, it reflects women's lower rate of participation in the paid workforce. Second, it reflects the fact that many women wage-workers are not eligible to participate in this program, for example, paid household service workers, parttime workers, pregnant workers and workers in the "irregular economy" such as prostitutes, baby-sitters and home typists. The exclusion of these predominantly female wage-workers testifies to the existence of a gender segmented labor market, divided into "primary" and "secondary" employment. It reflects the more general assumption that women's earnings are "merely supplementary," not on a par 109

hypatia with those of the primary (male) breadwinner. Altogether, then, the figures tell us four things about programs like unemployment insurance: 1) they are administered in a way which individualizes rather than familializes recipients;2) they are designed to compensate primary labor market effects, such as the temporary displacement of a primary breadwinner; 3) the ideal-typical recipient is male; and 4) he makes his claim on the basis of his identity as a paid worker, not as an unpaid domestic worker or parent. One final example will round out the picture. The Social Security system of retirement insurance presents the interesting case of a hermaphrodite or androgyne. I shall soon show that this system has a number of characteristics of "masculine" programs in virtue of its link to participation in the paid workforce. However, it is also internally dualized and gendered, and thus stands as a microcosm of the entire while a Consider dual-benefit welfare that, system. somewhat adult beneficiaries are female, only majority-61.6%-of more than half of these-or 33.3% of all recipients-claim benefits on the basis of their own paid work records (Nelson 1984; Erie, Rein and Wiget 1983). The remaining female recipientsclaim benefits on the basis of their husbands' records, that is, as wives or unpaid domestic workers. By contrast, virtually no male recipients claim benefits as husbands. On the contrary, they claim benefits as paid workers, a labor marketlocated as opposed to family-located identity. So the Social Security system is hermaphroditic or androgynous; it is internally divided between family-based, "feminine" benefits, on the one hand, and labor market-based, "masculine" benefits, on the other hand. Thus, it too gets its structure from gender norms and assumptions.

Il So far, we have established the dualistic structure of the U.S. socialwelfare system and the gender subtext of the dualism. Now, we can better tease out the system's implicit norms and tacit assumptions by examining its mode of operation. To see how welfare programs interpret women's needs, we should consider what benefits consist in. To see how programs position women as subjects, we should examine administrative practices. In general, we shall see that the "masculine" and "feminine" subsystems are not only separate but also unequal. Consider that the "masculine" social-welfare programs are social insurance schemes. They include unemployment insurance, Social Security (retirementinsurance), Medicare (age-tested health insurance) and Supplemental Social Security Insurance (disability insurance for those with paid work records). These programs are contributory; wage-workers and their employers pay into trust funds. They are administered on a 110

nancy fraser national basis and benefit levels are uniform across the country. Though bureaucraticallyorganized and administered, they requireless, and less demeaning effort on the part of beneficiaries in qualifying and maintaining eligibility than do "feminine" programs. They are far less subject to intrusive controls and in most cases lack the dimension of surveillance. They also tend to require less of beneficiaries in the way of benefit-collection efforts, with the notable exception of unemployment insurance. In sum, "masculine" social insurance schemes position recipients primarily as rights-bearers. The beneficiaries of these programs are in the main not stigmatized. Neither administrativepractice nor popular discourse constitutes them as "on the dole." They are constituted rather as receiving what they deserve, what they, in "partnership" with their employers, have already paid in for, what they, therefore, have a right to. Moreover, these beneficiaries are also positioned as purchasing consumers. They receive cash as opposed to "in kind" benefits and so are positioned as having "the liberty to strike the best bargain they can in purchasing services of their choice on the open market." In sum, these beneficiaries are what C. B. MacPherson (1964) calls "possessive individuals." Proprietors of their own persons who have freely contracted to sell their labor-power, they become participants in social insurance schemes and, thence, paying consumers of human services. They therefore qualify as social citizens in virtually the fullest sense that term can acquire within the framework of a male-dominated capitalist society. All this stands in stark contrast to the "feminine" sector of the U.S. social-welfare system. This sector consists in relief programs, such as AFDC, food stamps, Medicaid and public housing assistance. These programs are not contributory, but are financed out of general tax revenues, usually with one-third of the funds coming from the federal government and two-thirds coming from the states. They are not administered nationally but rather by the states. As a result, benefit levels vary dramatically, though they are everywhereinadequate, deliberately pegged below the official poverty line. The relief programs are notorious for the varieties of administrative humiliation they inflict upon clients. They require considerable work in qualifying and maintaining eligibility; and they have a heavy component of surveillance. These programs do not in any meaningful sense position their subjects as rights-bearers. Far from being considered as having a right to what they receive, recipients are defined as "beneficiaries of governmental largesse" or "clients of public charity."7 In the androcentricadministrative framework, "welfare mothers" are considered not to work and so are sometimes required, that is to say coerced, to work 111

hypatla off theirbenefitsvia "workfare."They thus becomeinmatesof what Diana Pearce (1979) calls a "workhousewithout walls." Indeed, the only sense in which the categoryof rightsis relevantto these clients' situationis the somewhatdubiousone accordingto whichthey are entitled to treatmentgovernedby the standardsof formal-bureaucratic proceduralrationality.But if that rightis construedas protectionfrom administrativecaprice,then even it is widely and routinelydisregarded. Moreover,recipientsof public relief are generallynot positioned as purchasingconsumers.A significantportionof theirbenefitsis "in kind" and whatcash they get comes alreadycarvedup and earmarked for specific,administratively designatedpurposes.Theserecipientsare thereforeessentiallyclients, a subject-positionwhich carriesfar less powerand dignityin capitalistsocietiesthan does the alternativeposition of purchaser.In these societies,to be a clientin the senserelevant to relief recipientsis to be an abject dependent.Indeed,this sense of the term carriesconnotationsof a fall from autonomy, as when we speak, for example,of "the client-statesof empiresor superpowers." As clients, then, recipientsof relief are the negativesof possessive individuals.Largelyexcludedfrom the market,both as workersand as consumers, claiming benefits not as individualsbut as membersof "failed" families,these recipientsare effectivelydeniedthe trappings of social citizenshipas the latter are defined within male-dominated capitalistsocieties.8 Clearly,this systemcreatesa double-bindfor womenraisingchildren withouta malebreadwinner. By failingto offerthemdaycare,job training, a job that pays a "family wage" or some combinationof these, it constructsthem exclusivelyas mothers.As a consequence,it interpretstheirneeds as maternalneedsand theirsphereof activityas that of "the family." Now, accordingto the ideology of separatespheres, this shouldbe an honorificsocialidentity.Yetthe systemdoes not honor thesewomen.On the contrary,insteadof providingthema guaranteed incomeequivalentto a familywageas a matterof right,it stigmatizes, humiliatesand harassesthem. In effect, it decreesthat these women must be, yet cannot be, normativemothers. Moreover,the way in whichthe U.S. social-welfaresysteminterprets "maternity"and "the family" is race-andculture-specific.The bias is madeplainin CarolStack's(1974)study,All OurKin. Stackanalyzes domesticarrangementsof verypoor Blackwelfarerecipientsin a midwesterncity. Where ideologues see "the disorganizationof the [sic] blackfamily," she finds complex,highlyorganizedkinshipstructures. These include kin-basednetworksof resourcepooling and exchange whichenablethose in direstpovertyto surviveeconomicallyand communally. The networks organize delayed exchanges or "gifts," in 112

nancy fraser Mauss' (1967) sense, of prepared meals, food stamps, cooking, shopping, groceries, furniture, sleeping space, cash (including wages and AFDC allowances), transportation, clothing, child care, even children. They span several physically distinct households and so transcend the principal administrative category which organizes relief programs. It is significant that Stack took great pains to conceal the identities of her subjects, even going so far as to disguise the identity of their city. The reason, though unstated, is obvious: these people would lose their benefits if program administratorslearned that they did not utilize them within the confines and boundaries of a "household." We can summarize the separate and unequal character of the twotiered, gender-linked, race-and culture-biased U.S. social-welfare system in the following formulae: Participants in the "masculine" subsystem are positioned as rights-bearing beneficiaries and purchasing consumers of services. Participants in the "feminine" subsystem, on the other hand, are positioned as dependent clients.

IV Clearly, the identities and needs which the social-welfare system fashions for its recipients are interpreted identities and needs. Moreover, they are highly political interpretations which are in principle subject to dispute. Yet these needs and identities are not always recognized as interpretations. Too often, they simply go without saying and are rendered immune from analysis and critique. Doubtless one reason for this "reification effect" is the depth at which gender meanings and norms are embedded in our general culture. But there may also be another reason more specific to the welfare system. Let me suggest yet another way of analyzing the U.S. social-welfare system, this time as a "juridical-administrative-therapeutic state apparatus" (JAT).9 The point is to emphasize a distinctive style of operation. Qua JAT, the welfare system works by linking together a series of juridical, administrative and therapeutic procedures. As a consequence, it tends to translate political issues concerning the interpretation of people's needs into legal, administrative and/or therapeutic matters. Thus, the system executes political policy in a way which appears nonpolitical and tends to be depoliticizing. Consider that, at an abstract level, the subject-positions constructed for beneficiaries of both the "masculine" and the "feminine" components of the system can be analyzed as combinations of three distinct elements. The first element is a juridical one which positions recipients vis-a-vis the legal system by according or denying them various rights. Thus, the subject of the "masculine" subsystem has a right to benefits 113

hypatla and is protected from some legally sanctioned forms of administrative caprice, while the subject of the "feminine" subsystem largely lacks rights. This juridical element is then linked with a second one, an administrative element. For in order to qualify to receive benefits, subjects must assume the stance of petitioners with respect to an administrative body; they must petition a bureaucratic institution empowered to decide their claims on the basis of administratively defined criteria. In the "masculine" subsystem, for example, claimants must prove their "cases" meet administratively defined criteria of entitlement; in the "feminine" subsystem, on the other hand, they must prove conformity to administrativelydefined criteria of need. The enormous qualitative differences between the two sets of procedures notwithstanding, both are variations on the same administrative moment. Both require claimants to translate their experienced situations and lifeproblems into administerable needs, to present the former as bonafide instances of specified generalized states of affairs which could in principle befall anyone (Habermas 1981). If and when they qualify, social-welfare claimants get positioned either as purchasingconsumers or dependent clients. In either case, their needs are redefined as correlates of bureaucratically administered satisfactions. This means they are quantified, rendered as equivalents of a sum of money (Habermas 1981). Thus, in the "feminine" subsystem, clients are positioned passively to receive monetarily measured, predefined and pre-packaged services; in the "masculine" subsystem, on the other hand, they receive a specified, predetermined amount of cash. In both subsystems, then, people's needs are subject to a sort of rewriting operation. Experienced situations and life-problems are translated into administerable needs. And since the latter are not necessarily isomorphic to the former, the possibility of a gap between them arises. This possibility is especially likely in the "feminine" subsystem. For there, as we saw, clients are constructed as deviant and service provision has the character of normalization-albeit normalization designed more to stigmatize than to "reform." Here, then, is the opening for the third, therapeutic moment of the JAT's modus operandi. Especially in the "feminine" subsystem, service provision often includes an implicit or explicit therapeutic or quasitherapeutic dimension. In AFDC, for example, social workers concern themselves with the "mental health" aspects of their clients' lives, often construing these in terms of "character problems." More explicitly and less moralistically, municipal programs for poor, unmarried, pregnant teenage women include not only pre-natal care, mothering instruction 114

nancy fraser and tutoring or schooling, but also counseling sessions with psychiatric social workers. As observed by Prudence Rains (1971), such sessions are intended to bring girls to acknowledge what are considered to be their true, deep, latent, emotional problems on the assumption that this will enable them to avoid future pregnancies. Ludicrous as this sounds, it is only an extreme example of a more pervasivephenomenon, namely, the tendency of especially "feminine" social-welfare programs to construct gender-politicaland political-economic issues as individual, psychological problems. In fact, some therapeutic or quasi-therapeutic welfare services can be regarded as second-order services. In any case, the therapeutic dimension of the U.S. social-welfare system encourages clients to close gaps between their culturally shaped lived experience and their administrativelydefined situation by bringing the former into line with the latter. Clearly, this analysis of the U.S. welfare system as a "juridicaladministrative-therapeuticstate apparatus" lets us see both subsystems more critically. It suggests that the problem is not only that women are disempowered by the denial of social citizenship in the "feminine" subsystem, although they are. It is also that women and men are disempowered by the realization of an androcentric, possessive individualist form of social citizenship in the "masculine" subsystem. In both subsystems, including the "masculine" one, the JAT positions its subjects in ways which do not empower them. It individualizes them as "cases" and so militates against collective indentification. It imposes monological, administrative definitions of situation and need and so preempts dialogically achieved self-definition and self-determination. It positions its subjects as passive client or consumer recipients and not as active co-participantsinvolved in shaping their life-conditions. Lastly, it construes experienced discontent with these arrangements as material for adjustment-oriented, usually sexist therapy and not as material for empowering processes of consciousness-raising. All told, then, the form of social citizenship constructed even in the best part of the U.S. social-welfare system is a degraded and depoliticized one. It is a form of passive citizenship in which the state preempts the power to define and satisfy people's needs. This form of passive citizenship arises in part as a result of the JAT's distinctive style of operation. The JAT treats the interpretation of people's needs as pregiven and unproblematic, while itself redefining them as amenable to system-conforming satisfactions. Thus, the JAT shifts attention away from the question: Who interpretssocial needs and how? It tends to substitute the juridical, administrative and therapeutic management of need satisfaction for the politics of need interpretation. That is, it tends to substitute monological, administrative pro115

hypatla cesses of need definition for dialogical, participatory processes of need interpretation. 10

V Usually, analyses of social complexes as "institutionalized patterns of interpretation" are implicitly or explicitly functionalist. They purport to show how culturallyhegemonic systems of meaning are stabilized and reproduced over time. As a result, such analyses often screen out "dysfunctional" events like micro-and macro- political resistances and conflicts. More generally, they tend to obscure the active side of social processes, the ways in which even the most routinized practice of social agents involves the active construction, deconstruction and reconstruction of social meanings. It is no wonder, then, that many feminist scholars have become suspicious of functionalist methodologies; for, when applied to gender issues, these methods occult female agency and construe women as mere passive victims of male dominance. In order to avoid any such suggestion here, I want to conclude by situating the foregoing analysis in a broader, nonfunctionalist perspective. I want to sketch a picture according to which the social-welfare apparatus is one agent among others in a larger and highly contested political arena. Consider that the ideological (as opposed to economic) effects of the JAT's mode of need interpretationoperate within a specific and relatively new societal arena. I call this arena "the social" in order to mark its noncoincidence with the familiar institutionalized spaces of family and official-economy. As I conceive it, the social is not exactly equivalent to the traditional public sphere of political discourse defined by Jiirgen Habermas (1975,1981); nor is it coextensive with the state. Rather, the social is a site of discourse about people's needs, specifically about those needs which have broken out of the domestic and/or official-economic spheres that earlier contained them as "private matters." Thus, the social is a site of discourse about problematical needs, needs which have come to exceed the apparently (but not really) selfregulating domestic and economic institutions of male-dominated, capitalist society." As the site of this excess, the social is by definition a terrain of contestation. It is a space in which conflicts among rival interpretations of people's needs are played out. "In" the social, then, one would expect to find a plurality of competing needs discourses. And in fact what we do find here are at least three major kinds: 1) "expert" needs discourses of, for example, social workers and therapists, on the one hand, and welfare administrators, planners and policy makers, on the other; 2) oppositional movement needs discourses of, for example, 116

nancy fraser feminists, lesbians and gays, people of color, workers and welfare clients; and 3) "reprivatization" discourses of constituencies seeking to repatriate newly problematized needs to their former domestic or official-economic enclaves. Such discourses, and others, compete with one another in addressing the fractured social identities of potential adherents. Seen from this vantage point, the social has a two-fold character. It is simultaneously a new arena of state activity and, equally important, a new terrain of wider political contestation. It is both the home turf of the JAT and, also, a field of struggle which the JAT does not simply control, but on which it acts as one contestant among others. It would be a mistake, then, to treat the JAT as the undisputed master of the terrain of the social. In fact, much of the growth and activity of the social branch of the state has come in response to the activities of social movements, especially the labor, Black, feminist and Progressive movements. Moreover, as Theda Skocpol (1980) has shown, the social state is not simply.a unified, self-possessed political agent. It is rather in significant respects a resultant, a complex and polyvalent nexus of compromise-formations in which are sedimented the outcomes of past struggles as well as the conditions for present and future ones. In fact, even when the JAT does act as an agent, the results are often unintended. When it takes responsibility for matters previously left to the family and/or economy, it tends to denaturalize those matters and thus risks fostering their further politicization. In any case, social movements, too, act on the terrain of the social (as do, on a smaller scale, clients who engage the JAT in micropolitical resistances and negotiations). In fact, the JAT's monological, administrative approach to need definition can also be seen as a strategy to contain social movements. Such movements tend, by their very nature, to be dialogic and participatory. They represent the emergent capacities of newly politicized groups to cast off the apparently natural and prepolitical interpretations which enveloped their needs in the official-economy and/or family. In social movements, people come to articulate alternative, politicized interpretations of their needs as they engage in processes of dialogue and collective struggle. Thus, the confrontation of such movements with the JAT on the terrain of the social is a confrontation between conflicting logics of need definition. Feminists, too, then, are actors on the terrain of the social. Indeed, from this perspective, we can distinguish several analytically distinct, but practically intermingled kinds of feminist struggles worth engaging in the coming welfare wars. First, there are struggles to secure the political status of women's needs, that is, to legitimate women's needs as genuine political issues as opposed to "private" domestic or market 117

hypatla matters. Here, feminists would engage especially anti-welfaristdefenders of privatization. Second, there are struggles over the interpreted content of women's needs, struggles to challenge the apparently natural, traditional interpretations still enveloping needs only recently sprung from domestic and official-economic enclaves of privacy. Here feminists would engage all those forces in the culture which perpetuate androcentric and sexist interpretations of women's needs, including but not only the social state. Third, there are struggles over the who and how of need interpretation, struggles to empower women to interprettheir own needs and to challenge the anti-participatory, monological practices of the welfare system qua JAT. Fourth, there are struggles to elaborate and win support for policies based on feminist interpretations of women's needs, policies which avoid both the Scylla of private patriarchy and the Charybdis of public patriarchy. In all these cases, the focus would be as much on need interpretation as on need satisfaction. This is as it should be, since any satisfactions we are able to win will be problematic to the degree we fail to fight and win the battle of interpretation.

notes *I am grateful for the helpful comments, suggestions and criticisms of Sandra Bartky, John Brenkman, Jane Collier, Ann Garry, Virginia Held, Thomas McCarthy, Carole Pateman, Birte Siim, Howard Winant, Terry Winant, Iris Young, and the members of Midwest Society for Women in Philosophy. I also thank Drucilla Cornell and Betty Safford for the invitations which provided occasions for developing the essay; the Stanford Humanities Center for a congenial working environment and financial support; and Dee Marquez and Marina Rosiene for crackerjack word processing. 1. I believe that Brown's terms are too simple on two counts. First, for reasons elaborated by Gayle Rubin (1975), I prefer not to use 'patriarchy' as a generic term for male dominance but rather as the destination of a specific historical social formation. Second, Brown's public/private contrast oversimplifies the structureof both laissez- faire and welfare capitalism, since it posits two major societal zones where there are actually four (family, official-economy, state, and sphere of public political discourse) and conflates two distinct public-private divisions. (For a discussion of this second problem, see Fraser 1985b.) These problems notwithstanding, it remains the case that Brown's terms are immensely suggestive and that we currently have no better terminology. Thus, in what follows I occasionally use 'public patriarchy' for want of an alternative. 2. For an analysis of the dynamics whereby late-capitalist political systems tend to select certain types of interests while excluding others, see Claus Offe (1972, 1974, 1980). For a feminist applicaiton of Offe's approach, see Drude Dahlerup (1984). 3. This phrase owes its inspiration to Jiirgen Habermas (1975). 4. I owe this phrase to Thomas McCarthy (personal communication). 5. I owe the phrase 'gender subtext' to Dorothy Smith (1984). A number of writers have noticed the two-tiered character of the U.S. social-welfare system. Andrew Hacker (1985) correlates the dualism with class but not with gender. Diana Pearce (1979) and Erie, Rein and Wiget (1983) correlate the dualism with gender and with the dual

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nancy fraser labor market, itself gender-correlated.BarbaraNelson (1984) correlates the dualism with gender, the dual labor market and the sexual division of paid and unpaid labor. My account owes a great deal to all of these writers, especially to Barbara Nelson. 6. Hilary Land (1978) identifies similar assumptions at work in the British socialwelfare system. My formulation of them is much indebted to her. 7. I owe these formulations to Virginia Held (personal communication). 8. It should be noted that I am here taking issue with the view of some left theorists that "decom-modification" in the form of in kind social-welfare benefits represents an emancipatoryor progressivedevelopment. In the context of a two-tieredwelfare system like the one described here, this assumption is clearly false, since in kind benefits are qualitatively and quantitatively inferior to the corresponding commodities and since they function to stigmatize those who receive them. 9. This term echoes Louis Althusser's (1984) term, 'ideological state apparatus.' Certainly, the U.S. social-welfare system as described in the present section of this paper counts as an "ISA" in Althusser's sense. However, I prefer the term 'juridicaladministrative-therapeuticstate apparatus'as more concrete and descriptiveof the specific ways in which welfare programs produce and reproduce ideology. In general, then, a JAT can be understood as a subclass of an ISA. On the other hand, Althusserian-like terminology aside, readers will find that the account in this section owes more to Michel Foucault (1979) and Jiirgen Habermas (1981) than to Althusser. Of course, neitherHabermas nor Foucault is sensitive to the gendered character of social-welfare programs. For a critique of Habermas in this respect, see Fraser (1985b). For my views about Foucault, see Fraser (1981, 1983 and 1985a). 10. These formulations owe much to Jiirgen Habermas (1975, 1981). 11. I borrow the term 'social' from Hannah Arendt (1958). However, my use of it differs from hers in several important ways. First, Arendt and I both understand the social as an historically emergent societal space specific to modernity. And we both understand the emergence of the social as tending to undercut or blur an earlier, more distinct separation of public and private spheres. But she treats the emergence of the social as a fall or lapse and she valorizes the earlier separation of public and private as a preferred state of affairs appropriate to "the human condition." I, on the other hand, make no assumptions about the human condition; nor do I regret the passing of the private/public separation; nor do I consider the emergence of the social a fall or lapse. Secondly, Arendt and I agree that one salient, defining feature of the social is the emergence of heretofore "private" needs into public view. But Arendt treats this as a violation of the proper order of things. She assumes that needs are wholly natural and are forever doomed to be things of brute compulsion. Thus, she supposes needs can have no genuinely political dimension and that their emergence from the private sphere into the social spells the death of authentic politics. I, on the other hand, assume that needs are irreduciblyinterpretiveand that need interpretationsare in principlecontestable. It follows from my view that the emergence of needs from the "private" into the social is a generally positive development since such needs thereby lose their illusory aura of naturalness, while their interpretationsbecome subject to critiqueand contestation. I, therefore, suppose that this represents the (possible) flourishing of politics, rather than the (necessary) death of politics. Finally, Arendt assumes that the emergence of the social and of public concern with needs necessarilymeans the triumph of administration and instrumentalreason. I, on the other hand, assume that instrumental reason represents only one possible way of defining and addressing social needs; and that administration representsonly one possible way of institutionalizing the social. Thus, I would argue for the existence of another possibility: an alternative socialist-feminist "dialogic of need interpretation" and a participatory-democratic-institutionalization of the social.

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references Althusser, Louis. 1984. Ideology and ideological state apparatuses: Notes towards an investigation. In Essays on ideology, ed. Althusser. London: Verso. Arendt, Hannah. 1958. The human condition. Chicago and London: The University of Chicago Press. Barrett, Nancy S. 1984. Mothers, fathers, and children: From private to public patriarchy. In Women and revolution, ed. Lydia Sargent. Boston: South End Press. Dahlerup, Drude. 1984. Overcoming the barriers: An approach to the study of how women's issues are kept from the political agenda. In Women's views of the political world of men, ed. Judith H. Stiehm. Dobbs Ferry, NY: Transnational Publishers. Ehrenreich, Barbara and Frances Fox Piven. 1984. The feminization of poverty. Dissent. Spring: 162-170. Erie, Steven P., Martin Rein and Barbara Wiget. 1983. Women and the Reagan revolution: Thermidor for the social welfare economy. In Families, politics, and public policies: A feminist dialogue on women and the state, ed. Irene Diamond. New York and London: Longman. Foucault, Michel. 1979. Discipline and punish: The birth of the prison. Trans. Alan Sheridan. New York: Vintage. Fraser, Nancy. 1981. Foucault on modern power: Empirical insights and normative confusions. Praxis International 1:272-87. 1983. Foucault's body-language: A post-humanist political ---. rhetoric? Salmagundi 61:55-70. -. 1985a. Michel Foucault: A "Young Conservative"? The case of Habermas and Gender. New German Critique 35:97-131. Habermas, Jiirgen. 1975. Legitimation crisis. Boston: Beacon. -- . 1981. Theorie des kommunikativen Handelns, Band II, Zur Kritik der funktionalistischen Vernunft. Frankfurt am Main: Suhrkamp Verlag. Hacker, Andrew. 1985. 'Welfare': The future of an illusion. New York Review of Books February 28: 37-43. Land, Hilary. 1978. Who cares for the family? Journal of Social Policy. 7:257-284. MacPherson, C.B. 1964. The political theory of possessive individualism: Hobbes to Locke. New York and London: Oxford University Press. Mauss, Marcel. 1967. The gift: Forms and functions of exchange in archaic societies. Trans. Ian Cunnison. New York and London: W.W. Norton & Company. 120

nancy fraser Nelson, Barbara J. 1984. Women's poverty and women's citizenship: Some political consequences of economic marginality. Signs: Journal of Women in Culture and Society 10:209-231. O'Connor, James. 1973. The fiscal crisis of the state. New York: St. Martin's Press. Offe, Claus. 1972. Political authority and class tructure: An analysis of late capitalist societies. International Journal of Sociology 2:73-108. ---. 1974. Structural problems of the capitalist state: Class rule and the political system. On the selectiveness of political institutions. In German Political Studies, ed. Klaus von Beyme. London: Sage Publications. .1980. The separation of form and content in liberal democratic politics. Studies in Political Economy 3:5-16. Pearce, Diana. 1979. Women, work, and welfare: The feminization of poverty. In Working Women and Families, ed. Karen Wolk Feinstein. Beverly Hills, CA: Sage Publications. Rains, Prudence Mors. 1971. Becoming an unwed mother: A sociological account. Chicago: Aldine Atherton, Inc. Rubin, Gayle. 1975. The traffic in women: Notes on the "Political Economy" of sex. In Towards an Anthropology of Women, ed. Rayna R. Reiter. New York: Monthly Review Press. Skocpol, Theda. 1980. Political response to capitalist crisis: NeoMarxist theories of the state and the case of the new Deal. Politics and Society 10:155-201. Smith, Dorothy. 1984. The gender subtext of power. Unpublished manuscript. Stack, Carol B. 1974. All our kin: Strategies for survival in a black community. New York, Evanston, San Francisco, London: Harper & Row.

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terry winant The Feminist Standpoint:A Matterof Language This essay is my contribution to two projects currently gaining the attention of feminist theorists. The first is the project of interpreting the work of Hannah Arendt. The second, of providing a secure foundation for the claim that there can be a distinctively feminist position either in political philosophy or more generallyin any field of philosophy. I explore in depth candidates for the feminist standpoint developed by Nancy Hartsock and Nancy Fraser. I connect the two projects, showing how feminists can learn from Hannah Arendt crucial lessons concerning speaking and thinking. It is thus in Arendt's work that I discover the missing element in recent attempts to ground the feminist standpoint.

m I not reaching out for you in the only language I know? A Are you reaching for me in your only salvaged tongue? If I try to hear yours across our differences does/will that mean you can hear mine? -Audre Lorde Among the projects currently gaining the attention of feminist theorists is the project of grounding the claim that there can be a distinctively feminist standpoint, either in political philosophy, or more generally in any area of philosophy. This project has arisen out of the women's movement's hope-so far unrealized-to be able to claim that it has been inclusive of all women, whatever the circumstances of their lives. As such, the project of articulating a feminist standpoint has a practical application. On the other hand, the project of grounding the feminist standpoint has'a practical application. On the other hand, the project of grounding the feminist standpoint is also the source of recent feminist philosophy's concern with epistemology and philosophy of science. For it is as theorist of knowledge and explanation that the feminist uncovers a tension within the aspiration to objectivity: the urge to eliminate bias from philosophy, science, and social science threatens also to eliminate the very diversity and richness of women's experience on which we have been expecting to be able to draw. Thus, the pursuit of a unitary feminist standpoint, insofar as it aims to eliminate bias, seems to undermine our chances for solidarity.' My purpose in this paper is to respond to this problem, using resources Hypatia vol. 2, no. 1 (Winter 1987). © by Terry Winant.

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hypatla gleaned from an interpretation of the work of Hannah Arendt. I draw on her writings about language, and show how feminists can learn from Arendt some crucial lessons concerning thinking and speaking.2 I discover in Arendt's work the missing element in recent attempts to address the problem of grounding the feminist standpoint. Women have no mother tongue, I argue. This paradoxical claim, together with my appropriation of Arendt, permits me to distinguish between a philosophical and a political problem in grounding the feminist standpoint. I then claim that only on its most philosophical conception is there a unitary feminist stance. In claiming that women have no mother tongue, I do not intend to claim that girls' initial language learning is actually the learning of a second language. Nor do I claim that women lack any sort of fluency. Rather, my view is that women as women do not inherit a common idiom or voice. So it is a mistake to assume that such an idiom is readily available and peculiarly suited to our position in sexist societies and to our needs in the struggle against sexism. My argument is indirect: I supply reasons feminists hope for a common discourse and for its concomitant political and epistemic position. I then describe two very nearly successful attempts at identifying a common feminist discursive practice, one due to Nancy Hartsock (1983; 1984, 231-51), and one due to Nancy Fraser(1987; forthcoming). I claim that these can be interpreted either as failures (near misses) at finding the standpoint and discourse common to women as women, or they can be interpreted as successful contributions to a far-from-complete project to create a feminist standpoint and discourse out of materials provided by the many diverse liberation struggleswhose hoped-for coalition is known as "the politics of differences." On either interpretation, these projects involve leaving behind the "call for a woman's voice." The second interpretation,however, has attractiveconsequences for the feminist theorist. One of these consequences is an account of the apparent multiplicity of feminist theoretical frameworks. Another consequence is a helpful distinction between feminism as a philosophical stance and the feminist perspective in political theory and practice.

I Fifteen years ago the problem of securing a feminist standpoint seemed an easy one. Consciousness-raising was the appropriate activity. It involved the exchange of information about the tough spots in our everyday lives. We discovered that these were not idiosyncraticthat the personal is political. We took it for granted that there was one and only one answer to the question "What is woman's lot in life?" and that once you caught 124

terry winant a glimpse of it-"Click!"-you had a new standpoint and you were a feminist. The movement would ultimately provide a full account of women's lot, and as more and more women discovered feminism and resisted injustice, that lot would change. But what if it is false that women have a common lot in life? Specifically, what if the feminism of the middle class-the white, U.S., middle class-is the only feminism there is? This seemed plausible. After all, the bourgeoisie is famous for its false assumption that its way of life is universal. So one should expect the bourgeois feminist to assume, falsely, that the lot of bourgeois women is the lot of women in general. The historical ties of the women's movement of the late sixties to the civil rights movement and to the anti-war movement exacerbated this problem. Trying to align a white women's feminism with a sexist Black power movement was cruel, divisive, and damaging. The western, middle-class women's movement heard unendingly that women in the third world needed to fight imperialism rather than male chauvinism. Yet there has never been any reason to disbelieve that the oppression of women is altogether ubiquitous. What was needed was a way of acknowledging differences among the lives of women without thereby giving up the hope of world-wide sisterhood. Here, two distinct philosophical gambits come readily to mind: the first gambit is the suggestion that perhaps there is no single answer to the question "What is woman's lot?" Perhaps women's lives bear only a family resemblance to one another, so that if you scan a batch of women's lives the oppression of women as women will be discernible, but not in virtue of any common characteristic. The second gambit is the assertion that what characterizes women's lot is the sort of thing that takes a different shape in different cultural settings. If so, the very same sexist oppression produces ways of life with virtually no common features. And this same sexism produces very diverse stereotypes of different groups of women-that is, it seems to produce stereotypes of the Appalachian Woman as quietly strong, the Asian Woman as pushy and quiet, the Jewish Woman as pushy and loud, and so on. To some extent, such analyses have been helpful to feminists looking for solidarity among differences. But such analyses also made consciousness-raising more confusing, for it became necessary to find some common ground that could be explicitly articulated in order to start the group off-one could no longer simply assume that commonality would automatically emerge. What was needed was a feminist standpoint-although we did not know this, and thought our need was to agree on the meaning of the term 'feminist'. 125

hypatla A standpoint would supply a shared discourse within which to theorize, strategize, argue, organize, and ultimately mobilize forces intent on bettering women's situations. It also would provide a way of understanding the fact that this feminist discourse would be "underground", i.e., it would not be a part of the reigning social practices already institutionalized in our society. If women were to adopt a fragment of the dominant discourse our use of it would co-opt our movement; yet if it were not a fragment of the dominant discourse then how could it arise and how would we know how to use it? One heady, though overly simplistic, solution was the idea of womancentered, woman-identified point of view. We learned the meaning of the term 'gynocentric', and that was the end of the matter. I believe that this effort representedan attempt to adopt a discourse before learning it: We thought that we knew automatically how to articulate our concerns in a gynocentric vocabulary. The discovery that this was not the case came from several directions, most importantly from the need to clarify the alliances among distinct liberation struggles. Lesbianism as a form of life seemed to be a model for all the womencentered institutions that needed to be created.3 But of course those institutions do not yet exist. And marginalization-including the marginalization of lesbians-is a specific practice that occurs among the tactics of subordination the male-centered dominant institutions within which we in fact live, however marginally. Even separatism has its niche in the masculinist institutions that ostracize women. Thus the standpoint of the woman-identified woman is better described as "andro-peripheral" than as "gynocentric." Next came the call for the woman's voice: as if the absence of a unitary feminist standpoint could be filled simply by giving women the floor-where could the woman's voice be, after all, if not inside the women? This meant adopting a discourse peculiar to women by ending the habit of speaking (and writing) like a man. Theories of women's language have, by now, been elaborated at all levels of sophistication, and on the basis of scholarship in a large number of disciplines. Such theories are alike in explaining that women use men's language because our own has been silenced. According to some, this means that women use a language that is the same as that used by men; according to others, it means that women use a fragment or distortion of the language used by men-namely, that fragment or distortion of the dominant discourse assigned to women by the dominant, androcentric institutions. These theories are also alike in assuming that an alternative tongue is impatiently waiting inside us somehow, even if its emergence will require psychoanalysis. But this is an odd assumption: the sexism is a 126

terry winant matter of social and political institutions; so it is only by very elaborate theory indeed that we become convinced that the place to confront it is inside ourselves. More recently it has been thought inappropriate to expect first to adopt a feminist standpoint, and afterward to make a feminist revolution. Instead, the standpoint and the struggle are to develop side by side. Work in this area of feminist theory is now much more careful and thorough: its aim is to get started on the development of the feminist standpoint. Such work pays attention not only to empirical results in psychology, sociology, and linguistics, but also to current feminist poetry and fiction. Indeed, poets are now writing philosophical essays about the feminist standpoint. The feminist standpoint is to be considered not as a finished, fully elaborated standpoint, but as a flexibly developing standpoint that can handle whatever emerges in the process of eliminating sexism. Feminist discourse is not women's long-lost mother tongue, and it does not substitute for a missing mother tongue, or replace the mother tongues we all already have. Our feminism is a stance from within which to articulate our concerns in the idiom we deem appropriate, drawing on the full resourcesof all the languages we know-including a multiplicity of "mother tongues"-or, as I shall dub such resources, "cultural and discursive birthplaces"(CDB's).4

HI What is it to have a mother tongue? Why is it important? A discussion of some aspects of Hannah Arendt's distinction between the public and private spheres of human activity answers these questions. Her distinction is an unusual one, and has often been misunderstood. It supplies a contrast between two very different modes of conversation-one characteristic of talk among friends, and the other prepared for the possibility of conflict among strangers. This contrast not only makes it possible to say why it might be important to have a mother tongue, it also suggests a way to contrast epistemic and political aspects of ostracism and marginalization. On Arendt's account, the contrast between public and private spheres matches that between action and contemplation. The public sphere is the domain of freedom: concerted action and speech belong here, where individuals account for themselves. In acting together and speaking together we make history, giving articulation to our self-determination. The private sphere is the domain of necessity: in it, all the preconditions are met for participation in the life of the larger community (at least by the male citizens, for Arendt's topic is the ancient Greek or Roman household). These preconditions include the labor that makes 127

hypatla biological life posible as well as the thinking that is presupposed by the ability to tell right from wrong, and thus by sound political judgment. Thinking, for Arendt, is distinct from reasoning (i.e., calculative and instrumental reasoning). Thinking is dialogue with oneself. It requires a cessation of activity, and proceeds as if to be a Socratic selfinterrogation. It aims not at any rhetorical victory over an adversary, but at consistency and truth. The parties to the dialogue find themselves moving from side to side on the issues. And most importantly, the thinker is aware that the interrogation cannot result in inability to live with oneself.5 She writes: Thinking . . . is a solitary but not a lonely business; solitude is that human situation in which I keep myself company. ... . . .The only criterion of Socratic thinking is agreement, to be consistent with oneself . .. : its opposite . .means becoming one's own adversary .... To Socrates, . . . if you want to think, you must see to it that the two who carry on the dialogue be in good shape, that the partners be friends. The partner who comes to life when you are alert and alone is the only one from whom you can never get away-except by ceasing to think. ... ... When Socrates goes home, he is not alone, he is by himself. Clearly, with this fellow who awaits him, Socrates has to come to some kind of agreement, because they live under the same roof. Better to be at odds with the whole world than be at odds with the only one you are forced to live together with when you have left company behind. (Arendt 1977, 185-88) This "going home" to "think what we are doing" is a condition for the possibility of action and speech in the political sphere. Its absence characterizesthe thoughtlessness of evil-doing in the conformist modern world, as Arendt discovered in her observation of Eichmann. Thus, the distinctions between the public and the private spheres, and between the dialogue among friends and the adversarialrhetoric sometimes called for with strangers, are part of what must be salvaged for the sake of the struggle against totalitarianism. Since Arendt makes parallel distinctions between public and private, action and contemplation, and freedom and necessity, the discourse for thinking is literally the mother tongue, learned in the safety of the ancient household-a patriarchal institution if ever there was one. But, 128

terry winant on her account, in the late twentieth-century, the society at large is considered a single economy: a gigantic "household." This "social" realm includes both political and economic activities, and blurs the distinction between public and private. As the social realm expands to take in more of the private sphere, the realm in which it is possible to stop and think is severely reduced, resulting in conformism, thoughtlessness, and a lack of sound judgment. Arendt is partly right and partly wrong about the importance of her public/private distinction. She is right about the significance of a contrast between the safety of one's discursive and cultural birthplace and the risky business of the sphere of concerted action. She is right even in her belief that young people need to experience this sort of contrast if they are ever to achieve political maturity, i.e., a capacity for sound judgement about ends as well as means. But she is wrong about the uniformity with which the modern world fails its youth in this regard: in fact, the contrast is known to the post-war generations, though not in the guise of the distinction between a realm of necessity and a realm of freedom. Rather, what we know well is the contrast between the familiarity of the idiom of our marginal subcultures and the riskiness of the alienating establishment, with its dominant discourse we must reluctantly claim as ours.6 Marginalization and ostracism are institutionalized practices that systematically target a group of people for mistreatment. This mistreatment produces more than harm: it is not surprising that oppressed peoples have great resources for survival. But it is important that theorists not lump all such resources together and thereby fail to understand how they operate and what makes them available. I want particularly to distinguish between two "consolation prizes" that often come with marginalization and ostracism. The first is a mother tongue, in the sense of a discursive home in sharp enough contrast with dominant culture to meet the necessary condition for the development of political maturity. This consolation prize is what I have dubbed the "cultural and discursive birthplace." It does not arise because of an especially intense motivation for social change, or because of anything remotely similar. It comes from all along having been aware of a distinction between the safety of being with one's own people and the actual risks run in the society at large. The CDB is a political resource. It is not a characteristic of all marginalization, and where it is available, it is not a guarantee: other circumstances of oppression are as much assaults on one's capacity for sound judgment as are the conformist dominant culture. This political resource is a matter of language: when you go home 129

hypatia to your marginal community, you or your friends may insist that you give an account of yourself, but you are aware that the dialogue will not turn into a fight. A version of Arendt's formulation applies: "Better to be at odds with the whole world than be at odds with the only one[s] ... from whom you can never get away. .. ." For strangers, one must be ready for an adversarial encounter, where the point of the conversation is to win. At home, dialogue and thinking are safe, and so there is an opportunity to be mentally refreshed as well as to "think what one is doing" and to recover one's sure-footed political judgment. This contrast exactly reproduces that between the public and private spheres. Therefore, as the public/private distinction is persistently eroded, it is members of marginalized cultures who have a chance to come to political maturity. The dominant culture, meanwhile, is stuck with its ability to reason about means to given ends. It is at a loss when endsassessing judgment is what is called for. The second, and more commonly noticed "consolation prize" is not political, but epistemic. It comes from fluency in more than one set of discursive practices. With ostracism comes silence and invisibility; in order to get along in the established discourse it is necesssary to learn to "pass," more or less. Insofar as it is possible overtly to discern distinct discourses and adopt that which best articulatestheir experience, it is also possible for the ostracized to study carefully the forms of life constituted in the contrasting practices, and the connections between them-this process involves decoding and interpreting; it supplies most of the information available for the strategizingthat emancipatory struggle requires. Thus Terry Eagleton has written, It is sometimes claimed that modern literary theory is an impossibly esoteric affair, offensively elitist in its barbarous jargon. The truth is that such theory has always been more acceptable to the ruled than the rulers. Oppressed peoples are natural hermeneuticists, skilled by hard schooling in the necessity of interpreting their oppressors' language. They are spontaneous semioticians, forced for sheer survival to decipher the sign systems of the enemy and adept at deploying their own opaque idioms against them. (Eagleton 1984, 45) And Marilyn Frye, in a discussion of lesbians' total absence from the dominant discourse, writes: Reading or hearing the speeches of men on the unintelligibilityof women, I imagine the men are like peo130

terry winant pie who for some reason can see everything but automobiles and are constantly and painfully perplexed by blasts and roars, thumps and bumps, which they cannot avoid, control or explain. (Frye 1983,165) My primary goal here has ... been ... simply to say something clearly enough intelligibly enough, so that it can be understood and thought about. Lesbians are outside the conceptual scheme, and this is something done, not just the way things are. ... It is also true that lesbians are in a position to see things that cannot be seen from within the system. What lesbians see is what makes them lesbians and their seeing is why they have to be excluded. Lesbians are women-seers. When one is suspected of seeing women, one is spat summarily out of reality, through the cognitive gap and into negative semantic space. If you ask what became of such a woman, you may be told she became a lesbian, and if you try to find out what a lesbian is, you will be told there is no such thing. (Frye 1983, 173) Frye's and Eagleton's remarks are acknowledgements that there are discursive practices outside the ones we all share, and asymmetries in the epistemic situations of individuals positioned differently by such discourses.7 In this section I have explained something of Arendt's unusual view about the public and private spheres. I have appropriated it so as to characterize one of the consolation prizes of marginalization, namely, a capacity for political maturity. I have also characterized a second consolation prize, namely, epistemic competence in multiple forms of life. Note that both of these resources are characterized in terms of the discursive practices they involve. They are two distinct resources; it is possible to have one without the other. It is usually thought that the epistemic resource is the central advantage of adopting an emancipatory standpoint. Emancipatory standpoints do come equipped with the epistemic advantage. I want to put the focus on the political resource, however: an emancipatory standpoint, even with its epistemic advantage, will not ensure sure-footed political action. For this one needs good political judgment, for which a CDB is a necessary condition.

"I In any sense in which a feminist standpoint would necessarily presuppose a women's subculture and a CDB to which we contrast our par131

hypatla ticipatory political life, there can be no feminist standpoint. Audre Lorde's notion of difference (Lorde 1984) takes the place of this absent discourse: we use the standpoints we learned in whichever discursive birthplace or contrasting community-ethnic, racial, or whateverwe happen to have had. Nevertheless, inasmuch as the feminist standpoint need not assume that there is a women's cultural and discursive home, I think it is possible to create a unitary standpoint. Up to now, however, we do not have one. As Alison Jaggar has shown, there genuinely are divergent, competing "political philosophies of women's liberation" (Jaggar 1977), and each is tied up with a theory of human nature and with specific epistemological doctrines (Jaggar 1983). We are in theoretical turmoil of a kind that the women's movement can ill afford-turmoil that tends to relegate theorizing to the ivory tower. In this section, I sketch two competing state-of-the-art attempts to ground the feminist political standpoint. These are Nancy Hartsock's explicit project of grounding the feminist standpoint (Hartsock 1983;1984), and Nancy Fraser's specifically feminist critique of the welfare state (Fraser 1987; forthcoming). I proceed to show how, in light of the distinction between the epistemic and the political consolation prizes discussed above, they can be reconciled. Hartsock's "Standpoint" essay, together with her book, Money, Sex and Power (Hartsock 1984), not only hold out a promise of a securely grounded revolutionary women's movement, they also make an excellent case for the claim that without such a standpoint no adequate account of human community will be possible. Both Hartsock and Fraser aim to build a feminist standpoint by means of an analysis of a distortion of the world. Since the distortions they analyze occur along gender lines, the standpoints are specifically feminist. Each borrows from another (admittedly non-feminist) theory of emancipation, taking over the approach and the method, but not the descriptive content, of this other account. In each case, the theory borrowed also claims that the world is ideologically distorted-Hartsock relies on Marx, Georg Lukacs and psychoanalysis; Fraser, on Max Weber, Michel Foucault, and Arendt. Each of these sources belongs to an unmasking tradition in philosophy. Hartsock and Fraser adapt them to create a specifically feminist unmasking. Hartsock seeks to articulate a feminist standpoint based on the model of the proletarianstandpoint articulatedby Marx. Thus, Hartsock hopes to develop an "epistemological" tool-that is, a tool for evaluating knowledge-claims-useful in the struggle against sexism. Among the claims that make sense within phallocratic institutions, some will be shown to be intelligible only as artifacts of these institutions. At a "deeper level," these claims do not make sense at all. Because of the 132

terry winant ties between sexism and other forms of injustice-not just economic exploitation, but also racism, ethnocentrism, heterosexism-Hartsock expects this tool will help in opposing all forms of domination (Hartsock 1983, 283). Hartsock's project for a feminist standpoint inherits from its marxian sources a fundamental dependence on the epistemic consolation prize. As such, it is an epistemological project. Material life circumscribes and structures understanding, according to Hartsock. Dominant and subjugated peoples have deeply disparate ways of life, leading to different capacities for understanding. But while the dominant form of life is well known to those whom it subjugates, their form of life remains inaccessible and unknown to the ruling group. Subjugation brings with it a sort of "parallax": all human relations can, at least in principle, be understood from within either form of life. The doubling of one's understanding from the marginal position permits a kind of "triangulation." This epistemic advantage is the significant gain in the adoption of an emancipatory standpoint. According to the marxist account, capitalism distorts the world. On Hartsock's account, sexism distorts the world. These distortions come from a topsy-turvy relation between how things are and how things seem: the "surface appearance" overwhelms some "deeper essence", and it takes a special epistemological device to reclaim the deeper level. Capitalism involves a reversal between the levels of exchange and of production; these are related as "surface" appearanceand "deeper" essence. The standpoint of the proletariat recognizes these "dual levels of reality" (Hartsock 1983, 283) and can be used to explain the distortions of the human world that result from mistaking appearance of exchange for the whole reality of political economy. According to Hartsock, sexism involves a reversal between the levels of production and of reproduction. These, too, are related as "surface" appearance and "deeper" essence. The feminist standpoint thus recognizes another pair of levels of reality-the marxist's deeper level is Hartsock's "surface." There are tight theoretical bonds among the notions of a distortion of the world, of distinct levels of appearance and essence, and of the possibility of developing a standpoint. These connections depend on a metatheoretical principle which Hartsock formulates in the following way: [T]here are some perspectives on society from which, however well-intentioned one may be, the real relations of humans with each other and with the natural world are not visible. (Hartsock 1983, 285) This principleis actually a description of the epistemic consolation prize, 133

hypatla for it says that societies are divided in a way that distributes knowledge asymmetrically. From the perspective of the dominant group it is impossible to know the real social structures. By spelling out the ramifications of this principle, Hartsock extracts from marxist theory a set of five criteria for identifying emancipatory standpoints generally, including both the feminist standpoint and that of the working class. The first criterion is that any concrete form of life circumscribes and structures its participants' understanding of the world. According to marxism, economic life conditions our understanding, so that ruling class and working class understand the world differently. According to Hartsock, our reproductivelife conditions our understanding, so that men and women have different ways of making sense of the world: we understand differently human beings, things, and the relations among them. The second criterion for a standpoint is that the understanding available to each of the two different groups are not merely different, but fundamentally opposed. Exchange as a form of life is, according to marxism, not only an inversion but a perversion, since it is production for use on which human life depends. This second criterion is the most difficult for Hartsock to meet. She must show that "the female experience not only inverts that of the male, but forms a basis on which to expose abstract masculinity as both partial and fundamentally perverse." She argues successfully and in detail that in masculinist society, the erotic dimension of human life is both truncated and radically misdirected. The erotic, on her account, comprises three parts: fusion (Freud's definition-the aim to make one out of many), bodily sensuality, and creativity and generation (Hartsock 1984, 166-67). Each of these suffers a reversal in masculinist sexuality. The most dramatic of these is the repression of the goal of fusion, which then surfaces as the impossibility of community and a preoccupation with death, indeed the death of the other. The other two reversals are the experience of the body as shameful, and the negative forms taken by creative and procreative activity: not only sexuality but all creativity is bound up with danger and domination. The third criterion is that the understanding available to the dominant group cannot simply be dismissed as irrelevantor false. In capitalist society all parties are forced to participate in the dominant form of life. Since everyone buys and sells things, the cultural product of capitalism cannot be dismissed as irrelevant to the self-understanding of workers. In sexist society, the superficial understanding of the world canonized by what Hartsock dubs "abstract masculinity"8 cannot be dismissed as false or irrelevant to women, because men have the power 134

terry winant to structure social relations in which women, too, must participate. Fourth, standpoints are not automatically at hand. They must be won through both theoretical analysis and political struggle. Under capitalism, the ruling class controls the means of intellectual as well as physical production, so that the theoretical standpoint from which we can analyze the exploitation is occluded. The construction of the proletarian standpoint must be mediated by a political struggle against the ruling class. The recent history of the women's movement bears out the analogous point for the feminist standpoint. Feminists have been struggling to handle, both theoretically and practically, all the differences among female experiences as these are refracted through multiple oppressions. Each form of domination presents an aspect of what needs to be accomplished in constructing the specifically feminist standpoint: the differences must be made to function as epistemological and political resources in our exploration of female forms of life. The fifth and final criterion is that a standpoint can be the startingpoint for a liberation struggle. This is so because "the adoption of a standpoint exposes the real relations among human beings as inhuman. . ." (Hartsock 1983, 285). From the proletarian standoint, it is obvious that social relations of production can and ought to be reorganized so as to eliminate alienation. Analogously, the feminist standpoint makes explicit and obvious the fact that under patriarchy human relations are inhumane. Once this is unmasked, it will not be tolerated (Hartsock 1983, 303). Since standpoints are emancipatory perspectives, to have a standpoint is already to engage in social criticism. Hartsock understands the feminist transformation of society as an analogue of a proletarian revolution. If the point of view of capital were replaced by that of the proletariat, the reigning form of life would be that of the propertyless producer. If the phallocratic point of view were replaced by that of the feminist, the reigning form of life would be that now exemplified by women: "propertyless producer both of use-values and of human beings." I turn now to Nancy Fraser. Her work on the "social state" offers a very different, though equally well elaborated, characterization of the feminist standpoint.9 Like Hartsock, Fraser borrows from a theory of human emancipation constructed as a critique of ideology: namely Arendt's critique of totalitarianism.10 According to Arendt totalitarianism distorts the world. According to Fraser, as with Hartsock, sexism distorts the world. Neither Arendt nor Fraser, however, treat these distortions in terms of a metaphysics of appearance and essence. And neither would be comfortable with the use Hartsock makes of metaphors of surface and depth." Since the 135

hypatla distortions of the world produced by taking surface for essence are analogous to those that arise from the substitution of an encroaching realm for what it encroaches upon, I can draw the parallels between Hartsock and Fraser without commiting Fraser to Hartsock's metaphysics. Fraser borrows from Arendt the concept of a social domain which is distinct from the political, economic, and private domains, and which hovers somewhere between the economic and the private (Fraser 1987, 108). Arendt held that social realm is encroaching on the public domain. On Arendt's account, this development is a threat to human history itself, for the loss of a distinction between public and private spheres would mean a loss of the conditions for our acting in concert with others, and it is as concerted agents that we create ourselves and our history. While Arendt would consider the term 'social state' an oxymoron, with it Fraser moves beyond the traditional political theorist's project of explaining the state. Influenced by Weber and Foucault, among others, Fraser treats the state as bureaucratic and decentralized, and as taking many different forms. States develop and change, and in a transitional period more than one sort of state power is exercised; there is contestation among them. The contestants are not distinct states competing for sovereignty; they are distinct forms the state itself can takeFraser calls them "state-formations" or "state-complexes." The welfare state exhibits the state-formation now typical of western industrial societies. Fraser's analysis of the operation of this stateformation leads her to dub it the "juridical-administrative-therapeutic state-formation" (the JAT) (Fraser 1987, 105). Within the JAT, law and bureaucracies, and also the helping professions exercise power, interact with one another in more or less conflictual relationships. The JAT positions us, its subjects, in three distinct ways: as bearer of legal rights, as client (and sometimes functionary) with administrative entitlements, and as consumer of services (including therapy). None of these positions makes the subject as self-articulating member of a community capable of concerted action. The power of the JAT is "monologic." On the other hand, the vision of empowerment carried by contemporary movements for social change includes exactly the communal self-articulation and capacity for concerted action that Arendt located in the public sphere: "dialogic" participatory power. According to Fraser, we are now witnessing an encroachment on dialogic participatory power by monologic administrative power. It takes the form of a threat of cooptation that confronts us at every move. It is because of this threat that Fraser says, 136

terry winant What feminism needs is not a theory of the state tout court, not a theory of the state as law, but a criticaltheoretical account of the actual state environment with respect to which it [feminism] must function. (Fraser forthcoming, 4) Fraser's account of the social state unmasks a distortion of the world, parallel to that which Arendt analyzed, but specifically concerned with the position of women. This distortion comes from a deeply ambivalent relation between the juridical-administrative-therapeuticstate (the JAT) and the autonomous agents who are constituted both within this state and independently of it. This ambivalence is not a tension between how things seem and how things are but a tension between an unstable but powerful form of life and a stable but marginal one. Fraser leads us to see that, while this new state-formation is susceptible to change provoked by the self-organized collective action of feminists and others and aimed at meeting the needs articulated by radicals, and so presupposes the autonomous agency of these radicals, it is also the sort of state that constitutes us as passive and dependent clients as it elaborates a form of life in which we cannot but participate.'2 Fraser's feminist standpoint explains this ambivalence. Fraser describes a specific distortion of the world that arises from a disempowering relation between the positioning of the individual human being as subject of the JAT and the location of the individual human being as a political agent. This form of passive citizenship arises as a result of the JAT's distinctive style of operation. The JAT works to depoliticize needs which have already entered the social arena by recasting them in a nonpolitical guise. It treats the interpretation of these needs as pregiven and unproblematic, while itself redefining them as amenable to system-conforming satisfaction. Thus, the JAT shifts attention away from the question: Who interprets social needs and how? (Fraser 1987, 115) Thus the subject as client for the social state tends to overwhelm the human agent as political agent. Along with the constitution of clients in the social state comes the bureaucratization of emotional labor. The intimate psychological life of the client is persistently eroded and absorbed into the social domain. The social domain and the intimate psychological domain make up a complete form of life-comprising, among other things, a type of epistemic subjectivity-which contests the form of life in which private emotional labor is a condition for the 137

hypatia possibility of any genuine thinking or political action. It is possible to distinguish the domain of the social state not only from that of other, earlier, "state formations," but also from a political domain understood, with Arendt, as the condition of human plurality. These two domains are more easily characterized in terms of how each constitutes it subjects: the hybrid rights-bearing client and consumer of services (including therapy) is opposed to the member of the self-articulating, collectively self-empowering concrete individual. Earlier state-defined arenas positioned their subjects as economic persons or individuals capable of contracting, as citizens with (limited) bourgeois rights and as household heads with dependents. In every case, the original and paradigmatic subject was male. Only secondarily and much later was it conceded that women, too, can occupy these subject-positions, though without altogether overcoming their original masculine subtext. Matters are different, however, with the JAT. Its original and paradigmatic subjects are primarily women: first, the vast majority of the recipientsof nearly all forms of benefits and entitlements-especially, poor women, elderly women and women in their childbearingand childrearing years; second, the paid women workers who disproportionately staff the feminized human services agencies and institutions; and third, the wives, mothers and daughters whose unpaid activities and obligations are redefined as the JAT increasingly oversees forms of caretaking. (Fraser 1987. 106) The fundamental opposition at the intersection of these domains is opposition to the JAT. And since ". .. the JAT is ... the first modern western state formation to constitute women directly as subjects .. ." (Fraser forthcoming, 8), it is plausible to argue that the other party in this opposition is the feminist movement. Now everything is in place for a Hartsock-style construction of a standpoint. And because the encroaching of monologic power on dialogic power is articulated in terms of the gender system, the standpoint constructed will be a specifically feminist one. First, it is clear that the JAT structures and circumscribes subjectivity, including epistemic subjectivity. But this is not the only epistemic subjectivity available to us. The political sphere, too, gives rise to a certain sort of epistemic subject: she can engage in joint action; she articulates her own account of herself in dialogue with the collectivity, producing history by producing autobiography. She has her con138

terry winant templative as well as her activist moments. This is to say that she can go home and think. Her moral judgment is thus grounded dialogically, and she is capable of concrete responses beyond the application of abstract moral concepts. Thus, not only on the side of the JAT is there a specific way of knowing and of exercising power. The feminist opposition brings with it its own way of making sense of the human world: both the range of objects (including human beings) to be understood, and the relationships among these objects are affected. Hartsock's second criterion demands that the understandingavailable within each of two forms of life structured in opposing ways will not merely differ; one will be the inversion-and, in cases of domination, the perversion-of the other. It is a virtue of Fraser's analysis, I think, that the opposition is not between two actual groups of people, but between people constituted as particular sorts of subjects. Nothing prevents the same human being from moving between the two, alternately being positioned as client-consumer of the JAT and being positioned as self-articulating historical agent in the political sphere. In what sense is the social state an inversion or perversion of the political sphere? For Arendt the answer would be that while conditions for genuine human speech and action include the separation of the private from the public sphere, the social state is a kind of hybrid, treating the necessities of human subsistence as if they were an appropriate political concern for free human beings. Fraser's analysis, unlike Arendt's, is ready to take the social state seriously, but like Arendt's, emphasizes the importance of concerted action and articulate self-determination. The JAT's arena is not uniform, and the location of the subject within it is neither stable nor peaceful. The rights-bearing subject, client subject, and therapeutic subject function poorly together (even in a single human individual); the JAT is an encoding of conflict and struggle. This is so because the JAT and the feminist movement are the two sources of attempts to address a problem characteristicof our historical situation: reconciling the "public ethic of right" with the "private ethic of care." 13 The JAT offers an unstable solution to the problem; the feminist movement offers no complete solution, but a framework for seeking solutions. The three subject positions in JAT are thus caricatures of the contrasting ethical projects: public, rights-oriented; private, careoriented; an amalgam of the two. They are caricatures because they pervert the political sphere's open dialogue among the aspects of valueseeking and justification that characterizes the process of moral judgment within a collectively self-defining community of self-individuators. Such a community engages in conversation aimed at sorting out the 139

hypatla significance for moral life of the results of Gilligan, Chodorow, Flax, et. al. Instead, the JAT monologically installs all the possibilities somewhere within its bureaucratic administrative grid. The JAT individualizes [its subjects] as cases and so militates against collective identification. It imposes monologic administrative definitions of situations and need and so preempts dialogically achieved self-definition and selfdetermination. (Fraser forthcoming, 10) Individual subjects constituted administratively in these ways are thus turned into antagonists by the very process that closes off the opportunity for self-articulation and dialogue among them. The third criterion for a standpoint is easily met by Fraser's account: the form of life governed by the JAT certainly cannot be dismissed as false or irrelevant to women. Among other things, some of the services the JAT provides are ones we would not be without, and the fact that it is the JAT that is providing them is not grounds for dismissing the services as corrupt. Fourth, the feminist standpoint is not obvious but must be won by theoretical and practical activity. Indeed, in the contest between the JAT and the feminist movement, the JAT derives its most powerful moves from its ability to camouflage itself in women-supportive activity, and its constitution of its subjects "as passive consumer-recipients and not as active co-participants involved in shaping their lifeconditions" (Fraser forthcoming). Finally, Fraser establishes that the feminist standpoint can ground the struggle for women's liberation. When feminists decide to find an arena outside the patriarchal-familial sphere, hoping to use it to meet women's needs in less oppressive ways, we do not find an empty arena, but rather we meet up with an already functioning state. Moreover, when we discover the tension between traditional patriarchalpower and the administrative power of the social state, we should not simply classify them both as "male power." "We need, rather, to exploit the tensions between them." There is considerable contrast between Hartsock's feminist standpoint and Fraser's. The most salient contrast is their wild disagreement about the relevance of psychoanalysis to feminism. Moreover, Hartsock is a marxist humanist, and draws gladly on Lukacs. Fraserexpects to move beyond both the humanism and the enlightenment tradition from which it comes. Hartsock's feminist standpoint systematically rejects a whole series of hierarchical dualisms that characterize the phallocratic form of life. 140

terry winant Fraser's feminist standpoint has nothing much to do with these or any dualisms. Fraser's feminist standpoint sees women engaged in concerted political action and in giving articulate accounts of themselves: constituting their own subjectivity. Thus, Fraser is not working out any one theory of women as epistemic subjects. Her descriptions of the various forms subjectivity takes under the various systems of domination are not attempts either to problematize the subject or to resolve that problematic. Hartsock makes both of these attempts, supposing that this is a requisite for the development of the feminist standpoint. On her account male subjectivity is hopelessly problematized as "abstract masculinity," female subjectivity presents a solution to this problematized subjectivity. In fact, Fraser and Hartsock are at loggerheads: Each purports to be spelling out the unique specifically feminist standpoint; both meet the criteria for doing so, but they have incompatible accounts of how sexism actually operates. Therefore, both projects for the feminist standpoint narrowly miss their mark, for neither will be able to defend its claim to uniqueness.

IV Marginalization often has two "consolation prizes," I have claimed. Women (as women) can claim an epistemic prize, but not a political one. Nonetheless, I suggested, women's political situations are sufficiently complex that the women's movement need never go wanting when it comes to resources for theory or practice. I have been exploring a pair of candidates for the feminist standpoint, each of which looks plausible. Inasmuch as they characterize two different emancipatory political projects, they can not both be right. Or can they? This is the "how many?" problem for feminist theory: these standpoints are the best to reach this degree of articulation, and they barely miss their target. So the unitary, specifically feminist standpoint is not yet available. In this section, I go on to see how feminists might create a discourse that could satisfy our hopes for a common feminist discourse. The final section offers some thoughts on the place of all this in our philosophical lives. Women as women, I claim, have no discursive home-no mother tongue. And although we share the epistemic consolation prize, this is not enough to supply a unified feminist discourse. What other resources are there for building such a discourse? The quick answer is: borrowed resources. Some distinctions and an argument are needed in order to spell this out. The distinctions are between philosophical doctrines and philosophical stances, and between 141

hypatia such philosophical items and emancipatory standpoints. The argument will be to show that where there is an emancipatory standpoint there is also a philosophical stance (though not conversely). The term 'position' is ambiguous. It hovers between 'doctrine' and 'stance'. Doctrines are "positions" in the sense of "things posited." Doctrines can be formulated in propositions; they are what we explicitly argue for. Stances are "positions" in the sense of "mental postures": locations, as it were, in philosophical space. The philospher "is put" (or "puts herself") instead of being the one "who puts" the thing philosophized about. Stances are often unacknowledged contributors to the style or substance of philosophical argument; they are where philosophers are "coming from." For example, empiricismis sometimes a doctrine (to the effect that knowledge is all, ultimately, based in experience), but it is often a stance: as, for example, when we speak of evidence as a sort of commodity that must be amassed. An emancipatory standpoint is, properly speaking, neither a stance nor a doctrine. Standpoints are not, in general, philosophical. Rather, they are locations in the political and cultural world. They are acquired by acknowledging one's commitments to projects for political and cultural transformation. Sometimes one has a standpoint that matches one's cultural or discursivehome as when one discovers one's "roots." In addition, the formation of solid alliances in movements for social change involves the adoption of a standpoint. The reason for reserving the term 'standpoint' in this way is that it is to bear a heavy epistemological burden. A commitment to oppressive status quo fails, as a rule, to embody a thoughtful assessment of ends. An adoption or acknowledgement of a standpoint requires such a judgment. This is not a philosophical activity; it is the thoughtful exercise of political maturity. Standpoints are different from stances in being taken up overtly and being directly tied up with emancipatory struggle. As such, they ground the articulation of theories (including philosophical doctrines) about the struggle, its history, and its purposes. Feminist theories exemplify this well-each is associated with a particular understanding of women's interests, and thus forms a doctrinal content for the standpoint that is the acknowledgment of the centrality of those interests. For instance, a psychoanalytic radical socialist feminist, such as Hartsock, judges women's interests to be the elimination of early childcare practices that impose a gender system on toddlers in the pre-oedipal stage of their development, on the ground that these practices sustain the gender-contrast between the alienation of productive labor and the alienation of reproductive labor. Emancipatory standpoints, I will now argue, involve philosophical stances. To illustrate this, I look again at the two feminist standpoints 142

terry winant I sketched. Hartsock and Fraser, in developing their respective versions of the feminist standpoint, take the same philosophical stance. They agree in identifying the same claims as worthy of the respect of partisans of women and as earning the disrespect of the phallocrat. These are claims consonant with the political and cultural projects of concerted self-defining and self-determining action, undertaken in a community of individuals whose autonomy is not independence but relatedness. Although this may appear to be a vaguely characterizedphilosophical stance, in fact it carves out a quite precise range of philosophical approaches. The adoption of the feminist philosophical stance entails a commitment to bear full responsibility for a vaiety of philosophical positions according to which each individual epistemic subject can establish his or her epistemic authority (i.e. reliability as a knower) only as a function of his or her place in the whole net of human interdependency. As a philosophical stance, feminism denies that human knowing is homogeneously distributed among us: not that some are more intelligent or better informed than others, but that what it is for a human being to be an epistemic subject is not a queston that can be asked equally well and in the same way about any individual. This is a radical stance, as it would render virtually all the traditional questions of epistemology ill-formed.'5 The feminist standpoint is an explicitly adopted partisanship: it roots for women. It takes advantage of the epistemic consolation prize, endorsing and encouraging women's fluency both in the discursive practice of phallocrats, and in its own hard-won marginal discourse. Each of these discourses has a "philosophical grammar." That is, as with any social context, the contexts of phallocratic practices and of feminist practices have some features which are unarticulated, but nonetheless constitutive of the boundary between sense and nonsense. The dominant discourse makes nonsense of judgments common in the marginal discourse, so that the project of moving from the margins toward the center entails a commitment to the modification of the philosophical grammar. To adopt a standpoint is already to allow for such modification. This is so because with a standpoint comes the possibility that on some occasion one's partisanship could lead to a fully acknowledged, purposive sticking by one's words or deeds at the cost of being challenged by those who cannot or will not adopt or respect one's standpoint. Now this is exactly what characterizescommitment to a philosophical stance. Exactly the same kind of commitment to the modification of the philosophical grammar is demanded when one attempts to bring a strange philosophical stance into a philosophical context that is com143

hypatla mitted to some other stance. The converse does not hold: most philosophical stances are not emancipatory standpoints, nor do they entail such standpoints. I do, however, believe that philosophy is in general partisan. Sometimes the unacknowledged partisanshipis of little importance. More often, though, we are oblivious to the choosing up of sides, and unaware of its consequences. As Alison Jaggar has documented, attempts to clarify the concept of a feminist standpoint have had difficulties capturing feminists' commitment to the claim that feminism is not monolithic. It seems as though there are many feminisms: a wide variety of positions that people identify as "feminism" and proceed to argue about. I think this is not quite right: The how-many-feminisms problem responds well to the distinction between philosophical stances and emancipatory standpoints. Moreover, the solution to this problem also makes clear what it means to claim that the building of feminist discursivepracticerequiresdrawing on borrowed resources. Insofar as we may speak of feminism as an emancipatory standpoint, there is not one feminism but many. But insofar as feminism is a philosophical stance, there is just one. This explains why there seem to be many feminisms, and-if we can avoid hiding in the ivory tower, and keep our philosophical work politically engaged-it holds out a promise for some theoretical unity. The task of creating a feminist discursive practice can flourish: and not because women have anything at all in common. Rather, what we have is our differences. It is not as women that we have a CDB and the capacity for political judgment, but we do have an enormous variety of political maturities among us, for it is not only as women that we have access to the practices of both oppressor and oppressed. We "borrow" our discursive homes and our multiplicity of discursive fluencies from ourselves. It is the emancipatory standpoint constructed from all our differences, and finding its roots in all our mother tongues, that is the basis for the politics of difference, and for what Adrienne Rich called the "dream of a common language" (Rich 1978).

V So far, it has been for the sake of the women's movement that I have been making these distinctions. However, for philosophy's sake, too, it is worthwhile to distinguish the feminist philosophical stance from the feminist standpoint. To do so is to argue that feminism counts as a philosophical position. I believe that feminism is not so much a doctrine but a philosophical stance. Feminists are partisans of women-the experiences women 144

terry winant bring to philosophy include everything they have assimilated living as the target of sexism's systematic mistreatment, and constitute a web of belief and a form of life that is at least as elaborate as that in light of which the tradition is generally approached. When women speak as women, our standpoint is something we have built as, among other things, a response to sexism. Typically, we display the consequences of a formidable struggle for emancipation mixed with a large component of compromise and its concomitant grief. And when women speak as philosophers, we become defenders of any number of philosophical doctrines. Our philosophical discourse ought to be the articulation of explicit justifications and defenses for these claims. But it ought not to require that we forsake our own emancipatory standpoint. The fact that many different doctrines are articulated and defended by feminist philosophers helps resolve the controversy over the multiplicity of feminist standpoints. Philosophical reflection leads many feminists to acknowledge the importance, within their feminist work, of stances they have adopted in relation to philosophical inquiry (e.g., the feminist Wittgensteinian or the feminist phenomenologist) and in relation to their political experience (e.g., the feminist peace activist, the feminist anti-racist). These stances do not combine additively, but have their own peculiar chemistry. My position can be summarized as the doctrine that the feminist standpoint is underdetermined by philosophical feminism. This doctrine is not among the candidates for a feminist standpoint; it is an entrance into the dialogue among feminists at the interface between epistemology and political theory-an interface where both knowledge and politics are being re-visioned. Although stances and standpoints are alike in that they have to do with "where you're coming from," a philosophical stance is not the same thing as a place in an emancipatory struggle. Only one philosophical stance is partisan of women, on my account. Many kinds of philosophy are done from this stance, though, and our differences as political agents will thus have consequences for our philosophical projects. Every individual feminist works from a standpoint that is likely to be just as much anti-racist or anti-imperialist or anti-militarist as it is anti-sexist. Without the manifold "compound stances" of individual activists-without the political maturity they embody-there would be no genuine feminist politics. Therefore, even though there is a sense in which there is a unique feminist stance, this does not entail that feminism is monolithic or that it does not bend in response to various political circumstances. The social state that Nancy Fraser describes is the sexist state-as 145

hypatia wellas the classist,the racist,the ethnocentristandthe heterosexiststate. The specificallyfeminist standpointis that from which it is possible to argueaboutandto organizeagainstthe specificallysexiststate.These activitiesare subversivediscursivepractices,which take place as part of the public,history-makingactivityof the humanworld, whereinwe are accountable for ourselves and our concerted action. It is a philosophicalissue-perhaps evena matterof concernto the philosophy of language-by whatsortof speechwe can movefrommarginto center the philosophicalstancethat takesthe side of women, and sticksto it.

notes I am grateful to Nancy Fraser, Dorothy Leland, and Sharon Keller for the discussions that gave rise to this work, and for continuing attention to its progress. The essay was written while I held a University Post-Doctoral Fellowship at The Ohio State University, and in the company of a reading group in feminist theory in the Ohio State Department of Philosophy-thanks are due for both the financial and the collegial support. I thank Betty Safford, her colleagues and her students, for the invitation to participate in the CSUF symposium, and for the discussion that occurred on that occasion. I have also been helped by discussions of this essay at Oberlin College, and in Virginia Sapiro's graduate seminar in Women's Studies at the University of Wisconsin-Madison. The essay has also benefitted from editorial help from Ann Garry, Marjorie Weinzweig, and Cathy Rasmussen. 1. Sandra Harding (1986) has pointed out that it is in noticing and confronting this problem that feminists make the turn to post-modernism. 2. Unlike other feminists who have attempted to interpret or appropriate Arendt e.g., Rich (1978); Hartsock (1984, 210-30); Fraser (1987 and forthcoming), I do not focus my attention on her political theory, nor do I address the questions whether or not we ought to forgive or excuse Arendt's anti-feminism. My discussion owes much to Elisabeth Young-Bruehl's biography of Arendt, (Young-Bruehl 1982) and like Young-Bruehl, I am not interestedin making Arendt into a feminist or settling any questions about whether, ultimately, hers was a politics of the Left or of the Right. 3. Indeed, arguments to show that all women are lesbians are among the classics of contemporary feminist philosophy. See Rich (1980). 4. A cultural and discursive birthplace is a home. For an account of some of the things it can mean to have had a "home," see the Introduction to Barbara Smith's anthology, Home Girls (Smith 1983). 5. This constraint, according to Arendt, is not a consequence of conscience, but rather an account of the origins of conscience. 6. For more about the reluctance with which women must claim the dominant discourse, see my "How Ordinary (Sexist) Discourse Resists Radical (Feminist) Critique" (Winant 1983). 7. This situation is best appreciated by considering the language struggles that form the discursive practice of revolutions against neo-colonial powers in the Third World. Perhaps the most telling of these is that of the GrenadianNew Jewel Movement-a struggle to combat illiteracy, but also to legitimate the use of the vernacular creole as the language of everyday life while establishing Standard English as the language of international

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terry winant communication. This bilingualism was a necessary but difficult goal. A creole shares its lexicon with the colonial language, but has a different phonology and different grammar. Moreover, the words in the lexicon do not always have the same sense in the creole and the colonial language. Thus colonial and neo-colonial establishments readily treat the vernacularas though it were their own language mispronounced and ungrammatical. For the revolution in Grenada, the decision to teach StandardEnglish as a second language and to use the vernacular for official business was a way of provoking the shift from conforming to the established ostracizing discourse, to acknowledging access to contrasting discursive practices, and interpreting and translating in such a way as to leave no epistemic resources unarticulated. The story of Grenada's attempt at an emancipatory English is told in Chris Searle's book, Words Unchained (Searle 1984). 8. Hartsock defines "abstract masculinity" as that form of life characterized by the construction of the individual self by opposition to another who threatens one's very being, and with it the understanding that the individual who is most developed is the one most distinguished from other members of his community. Drawing on the work of Nancy Chodorow and Jane Flax, among others, she assembles the evidence that our masculinist understandings of individuality and of community are distorted. Hartsock treats the psychoanalytic results as hypothetical, in line with her conviction that the work of developing a feminist standpoint is something she hopes to get started, not something she has completed (Hartsock 1983, 295). She finds she can describe an opposition between abstract masculinity and the concrete social roles that-as institutionalized-circumscribe women's lives (Hartsock 1983, 293-297). Abstract masculinity makes unintelligible the most important contribution women's concrete lives have to offer to the solution of the human dilemma of creating community without domination. The female construction of individuality is not conditioned by separation of individuals from one another. The ongoing and long-term "activity of rearing human beings who change in both more subtle and more autonomous ways than any inanimate object" is a social role embodied in a form of life which-unlike that of the proletariatdoes not constitutes human autonomy in terms of independence. 9. Fraser has not explicitly entered the debate about the project for a feminist standpoint; nonetheless, she succeeds at characterizing a specifically feminist standpoint. 10. Marjorie Weinzweig has rightly pointed out the strangeness of my setting sexism alongside totalitarianism as "ideologies." It is true, as Weinzweig says, that sexism is a way of life rather than an explicit political theory. But it is a virtue of Arendt's account of totalitarianism that it shows how totalitarianism is mostly a form of life. And quite generally, it is a virtue of the tradition of critique of ideology-from Hegel through the Frankfurt School-that it finds means to unmask the political commitments implicit in ongoing forms of life. Indeed, this is the basis of the attraction to the later Wittgenstein on the part of recent critical social theory. 11. For Hartsock, the epistemological gain feminism provides is an increase in objectivity: from the feminist standpoint we can know more about human reality. There are essentialist metaphysical assumptions involved in this sort of epistemology. For a thorough feminist analysis of this issue, see Harding (1986). 12. "The social state draws into its purview, as objects for positive action, matters previously left to develop willy-nilly according to the inherent logic of the capitalist economy and the partriarchalfamily. It does this largely though not exclusivelyin response to pressure from political movements, especially the workers', black, and feminist movements. But, as we shall see, in so doing, it tends to impose a logic of its own on the concerns of the participants of these movements" (Fraser forthcoming, 5). 13. This way of formulating the problem of our historical situation comes to Fraser by way of Seyla Benhabib's reading of Carol Gilligan's work. 14. I consider this in "Ostracism and the Inarticulable" (Winant unpublished).

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references Arendt, Hannah. 1977. The life of the mind. New York: Harcourt Brace Jovanovich. Eagleton, Terry. 1984. Uses of criticism, a review of Black Literature and Literary Theory, ed. Henry Louis Gates Jr. In The New York Times Book Review, 12/10/1984. Fraser, Nancy. 1987. Women, welfare, and the politics of need interpretation, Hypatia 2 (1): 103-121. ---. Forthcoming. Feminism and the social state. Frye, Marilyn. 1983. On separatism and power. In Thepolitics of reality. Trumansburg: The Crossing Press. Harding, Sandra. 1986. The science question in feminism. Ithaca: Cornell University Press. Hartsock, Nancy C.M. 1983. The feminist standpoint: Developing the ground for a specifically feminist historical materialism. In Discovering reality: Feminist perspectives on epistemology, methodology, and philosophy of science, ed. Sandra Harding and Merrill Hintikka. Dordrecht: Reidel. ---. 1984. Money, sex, and power: Toward a feminist historical materialsim. Boston: Northeastern University Press. Jaggar, Alison. 1977. Political philosophies of women's liberation. In Philosophy and women, ed. Sharon Bishop and Marjorie Weinzweig. 1979. Belmont: Wadsworth Publishing Company. 1983. Feminist politics and human nature. Totowa: Rowman ---. and Allanheld. Lorde, Audre. 1984. Sister outsider. Trumansburg:The Crossing Press. Rich, Adrienne. 1978. The dream of a common language. New York: Norton. -. 1979. When we dead awaken: Writing as re-vision. In On Lies, Secrets, and Silence. New York: Norton. -. 1980. Compulsory heterosexuality and lesbian existence. Signs: A Journal of Women in Culture and Society 5 (4): 631-660. Searle, Chris. 1984. Words unchained: Language & revolution in Grenada. London: Zed Books. Smith, Barbara, ed. 1983. Home girls: A blackfeminist anthology. New York: Kitchen Table: Women of Color Press. Winant, Terry. 1983. How ordinary (sexist) discourse resists radical (feminist) critique. Hypatia 3, published as a special issue of Women's Studies International Forum 6 (6). Ostracism and the inarticulable. Unpublished manuscript. ---. Young-Bruehl, Elisabeth. 1982. Hannah Arendt: For love of the world. New Haven: Yale University Press. 148

sheila ruth Bodies and Souls/Sex, Sin and the Senses In Patriarchy:A Study in Applied Dualism What elements lie at the core of patriarchal consciousness and give it its particularexpressions? Beneath the hatred of women, at its source, is a profound, dissociating fear: the fear of non-being, the Absence beyond Death. In an effort to escape death and non-being, the patriarchs have constructed a conception of existence which is split in two, with eternal life, God, meaning and spirit on one side and bodily death on the other. The masculist association of women with bodies, nature and the birthing-dying cycle places us clearly on the side of death, in the realm of being which is and necessarilymust be despised and controlled. Alienation from the rhythms of life, giving rise to a crisis of meaning; the denial of death, which leads paradoxically to an adoration of death; and a hysterical ambivalence to sex and sensuality all coalesce and find concrete expression in the personal and institutionalized hatred of Woman.

I had been summoned to his office, the Chairman of the Department of Philosophy and Religion (or was it Religion and Philosophy?) in a small university that had once been a religious college. He was, in fact, a minister of that religion. In facial features a handsome man, rather young, yet he seemed to me older, unrelievedly stark, rigid. He moved with little grace, as if not at home in his body. His smile needed warmth. In front of him on his desk lay a yellow pad, covered with scribblings-apparently about me. He held it between us as he spoke, deliberately, in measured tones: "Sheila, there have been some complaints about you ...." Two ladies from a church in a little town south of the college had called to report that they had heard me use "dirty words" during a lecture. The Dean of Nursing had called; one of her "girls" had told her that in class I had referred to the nursing students (or was it their uniforms?) as virgins (or virginal, she couldn't remember which). It was rumored I had assigned Lady Chatterley's Lover in the introductory Philosophy course. Was it true? I began to explain: I had been exploring the attitudes of Western culture towards the body and sex. I had raised the question of. ... Suddenly, interrupting, "Did you say 'fxxx' in class?" he blurted, blushing, losing composure. I answered, yes. I began to explain again. Again he Hypatia vol. 2, no. 1 (Winter 1987) © by Sheila Ruth.

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hypatla cut me off. "You can't ... You may not.... " There were protestations from me, mumbled utterances of academic freedom. (I was very young.) A few days later I received the proverbial pink slip. Following, there were meetings with the Dean and the Provost, subtle accusations of "misconduct," lectures on the nature and needs of society and academe, reports in the press, controversy, student delegations. ... Time passed. The pink slip prevailed. I lost. It was a telling incident. As I recall it now, it is clear to me as it was not then that no other outcome was possible. In the Provost's unwitting words, I was guilty of "massive cultural conflict." In underestimating Western patriarchy's hysterical ambivalence toward sex, and in overestimating the power of rationality in its resolution, I had forced into psychic proximity patriarchy's consciousness (as it is expressed through its religion) and the reality of human sexuality. In that community, such an action could not be tolerated. Feminists have expended considerable energy Catalogingthe insanities of patriarchy, whose attitudes towards sex and our physical selves are its greatest insanities as well as its most revealing (for in its sexual mores rest the source and the quintessentialprinciples of patriarchy).Feminists have talked of sex, some of us unflinchingly.' Yet even among us, on this matter of crucial significance, most of us have hesitated to go the distance,2 to penetrate to the very center of the experience, as it touches us personally, in vital, life-capturing terms. We talk about it, but we rarely talk of it. More often than not, we tiptoe, feint to the side, adopt prudent academic language, scientific terminology, or "scholarly objectivity."3 There are papers on the physiology of sex, the politics of sex, the economics of sex, and more; yet whether in Biology, Psychology, or even feminist theory, they are often as dry and unelucidating as charts of the reproductive system. For the most part, they rest on the perimeters of the event, the psychic and conceptual spaces contiguous to it, rather than on the happening itself. One may analyze the social rules and roles of sex, the laws, the mores, the manners and ill manners. One may relate the consequences of sexual arrangements-of power and powerlessness, of self-images, of freedom and unfreedom, economic and otherwise. Yet outside of a variety of surveys and reports,4 rarely, in terms that yield insight, does one speak of the internal, psychic phenomena of the event itself, the doing of it, the feeling of it, the subjective, close-up experiencing of it, the meaning of it within our own sense of self, life and spirit. It is not that we do not understand the centrality of the issue of sexuality in our lives, the consequences of its presence or absence, its freedom or usurpation, its expression or destruction. Both intellectually 150

sheila ruth and in some very deep, primal place within us we recognize the significance of the life of our bodies. Rather it is that we have to a large extent succumbed to the social prohibition against speech, against mentioning, against acknowledging publicly that recognition. Even now it is difficult to articulatepreciselythe subject of this discussion. How can one communicate with precision about a set of events for which there are no accurate words? I am speaking of what takes place externally, intersubjectively and phenomenologically when one sexes. I am referring to a whole range of events and experiences involved when one .. . (does it?). It is not that we need a better definition of intercourse and company. Quite the other way around, we know what we mean; there simply are no words for it, at least not ones that work. One may have sex, have sex with, copulate with, make love to, lie with, sleep with, take someone to bed (none of these terms even near accurate representations), but one cannot simply (insert ap, yet for nonsexpropriateverb). In the slang one can simply ist people the slang will not work. Were it even less illicit, less associated with and connotive of the sleazy, the current slang lexicon would still be inadequte to capture the range of activities and experiences involved. Essentially masculist, its terms are single-mindedlygenital and almost exclusively heterosexual. What is more, they are violent and contemptuous, sharply reflective of the society and the mind-set that give rise to them. How odd that this ubiquitous animal activity claims in our language no acceptable verb that expresses precisely what one does when one does it! To sex? To sex someone or sex oneself or be sexed. Sexing, the act of. In the absence of anything better, this term will have to do. It seems, at first, peculiar that we should be in such a quandry to find a word for an event so common in human experience. Generally, language reflects society's reality. Phenomena often experiencedor having powerful effect on life are typically assigned many terms or words, each reflecting some nuance of difference or definition. In this way a language is said to be "rich" in that area. For example in English, there are numerous terms to refer to forms of precipitation-rain, snow, sleet, fog, storm, and so on. There are bushes, shrubs, trees, flowers, weeds, thickets, scrubs, grass so we may name with minute accuracy the various kinds of plant life. Surely, sexing is as common as plant life, certainly as powerful, and yet in this regard our language is not merely "un-rich," it is poverty-stricken. It has been noted before that our one word, sex, is overworked, made to represent several quite different meanings: Sex refers to four separate, but related, physical151

hypatla psychological sets of data: (1) biological sex, defined by six anatomical and physiological characteristics: chromosomes, gonads, internal genitalia, external genitalia, hormones, and secondary sexual characteristics; (2) gender, composed of core gender identify (the sense, "I am female," "I am male"), gender role identity (the sense, "I am feminine," "I am masculine"), and gender role behavior, (3) sexual behavior, overt and fantasied, expressed both in choice of object and nature of activity; and (4) reproduction. (Person 1980, 605-606) Consequently we have "sex education" which is actually reproduction education (a concept which serves neither reproduction nor sex well), we have "sex-discrimination" which is more accurately gender discrimination or biological identity discrimination, and so on. The chaos attendant upon such confusion is obvious. It is edifying to note what appears under the heading sex in that most abundant of all word books, Roget's International Thesaurus (1946). sex kind 75.2, 3 womankind 374.5 75. Class 1. n. class, classification, division, subdivision, category, grouping, head, order; section, department, province, domain, range, sphere, estate, status, predicament. 2. n. kind, sort, type, tap [chiefly coll.], lot [coll.], stamp, brand, number [coll.], designation, variety, species, denomination, manner, style, description, feather, color, stripe [usu. derog.], grain, kidney, kin [obs.], the like or likes of [coll.]; connection, order, genus (pl. genera), gender [arch.], gens, genre [F.], strain, family, race, brood, tribe, caste, sept, phylum, clan, breed; subgenus, subspecies, subgroup, suborder, subfamily; make, cast, form, mold; set, kit [coll.], suit, sect; clique, coterie; character etc. (nature) 5.3. 3. n. sex, gender [coll. exc. Gram.], genre [F.], sect [misuse]. 374. Female (See 373. Male) 5. n. womankind, woman, women, world or realm of 152

sheila ruth women, womanhood, feminie [arch.], femininity, feminity, feminality, femality, womenfolk or womenfolks [coll.], calico [joc., U.S.]; the distaff, the sex, the fair, fair sex, softer sex, weaker sex, "the lesser man" (Tennyson), female sex; female variety [joc.], the eternal feminine, das Ewig- Weibliche [G.]; matronage, matronhood, matronship. Equally interesting is the entry under intercourse: intercourse junction business social -

43.1 704.1 892.1

43. Junction (See 44. Disjunction; also 41. Mixture, 48. Combination) 1. n. junction, joining, meeting etc. v.; joinder, union, accouplement, concurrence, connection, hookup [spec. coll.], tie-up [coll.], tie-in [coll.]; conjunction, conjuncture, conjugation; annexion, annexation, annexment [rare];subjunction; ligation, alligation [rare];compagination, structure;interrelation,interconnection, intertexture, interdigitation, interjoinder. blending, inosculation, anastomosis, confluence, concatenation, interlinking, interlocking, infibulation; restriction, astriction; coalescence, symphysis; concourse, consolidation, alliance, coalition, combine [coll.]; coupling, copulation [Chem.]; communication, intercourse; reunion, reune [coll.]; marriage etc. 903; assemblage etc. 72; combination etc. 48; mixture etc. 41; coherence etc. 46, addition etc. 37. 2. n. coition, coitus, copulation, copula [chiefly Law], sexual congress, sexual connection or conjunction, intercourse, sexual intercourse; procreation etc. (generation) 161.2; fructification etc. 168.1. The few entries specifically about sexing per se all refer to 43.2 above. There is the lot-hardly sufficient for our needs. Given this insufficiency, do we have other options? If in our need to communicate the intricacies or intimacies of sexing we abandon the barrenness of "polite" language, we appear to be left with only one 153

hypatia alternative-what is referred to (incorrectly) as "cursing," that is, the slang that has been outlawed by propriety as "foul" or "dirty" language. In other words, we are taught, when one mucks about with sex/sexuality in our culture, one lowers oneself to the dirt. It is perhaps equally instructive to observe the converse: should one wish to deal in dirt verbally, i.e. curse, one has little choice in our language but to refer to sexing or to parts of the body. A quick perusal of the foul repertoire reveals that the worst of our terms or epithets refer to body parts and functions, in place of something of the sort popular in some other cultures, "May the shadow of a goat fall upon your mother's grave." Even more ironic, the only two truly serious cursing words, hell and damn, are considered by most to be mild expletives, totally eclipsed in rancor by what in any sane universe might be a rather pleasant wish, "get sexed." This talk about sexual language might be little more than wryly funny or mildly informative were it not for the fact that generally speaking sex-talk is a map of sex-thought, and in Western culture the destinies of sexuality and of women have come to be entwined. There are reasons why the ideas of sexing are omitted from polite language. In patriarchy, sex-thought is decidedly schizophrenic: sexing exists, and it does not exist. For the record it is absent, what one might call a non-event, something which happens which yet does not happen. Too disturbing, too out of sync with the patriarchal construction of life, too dissociating even to utter, sexuality is "unspeakable," not formally acknowledged, and so in "official" public awareness it is erased, in a sense deactualized. It is reactualized only in different, even quarantined, psychic locations: either in the medico-technical retreat, where it may be isolated, scrubbed of affect, and rendered harmless, or in the nether regions of some sleazy, subordinate reality, where slang and id and sin reside. Two opposed realities, then, function concurrently to manage our relationship to sex: in the foreground-formally supported, maintained by nice people behaving nicely, consistent with the principles of the patriarchs as expressed in their religions, hailed as virtuous-stands the antiseptic realm of non-sensuality, non-sex. In this place one is pure, clean, virginal. Here one is modest, covered, in control, unbothered by the chaos of need or the dark confusions of physical fantasy or shared secrets. In the background looms another place, sinister, troublesome, shameful. Here is struggle and pain, for here is pleasure, passion, an intensely felt reality. In this place we are to experience carnality in its 154

sheila ruth widest sense. We eat, digest, gurgle and belch. We sex and lust. We imagine and fantasize and act out. Patriarchy presents us with two seemingly incompatible yet simultaneously operative realms of consciousness, two layers of existence both psychological and social, each with its own corresponding truths, rules, values, expectations, and more. We are requiredto balance precariously between them, learning early the intricacies of the dancemy body lives and acts; now I may speak of it, now I may not. At home, alone with my friends, we sometimes say this or that; in school, never. These words I hear, these acts I see in films at the theater, others on television, but some are reserved only for pay T.V. This I share with my family, this with my friends, this with my teacher. We are presented very early with the public and private realms and the system of judging what goes where, but soon we learn that the division is even deeper than public and private. It is legitimate and illegitimate. Although we may share certain publicly unmentionable items with Mother, at home alone, we may share only a portion of them and only in certain terms. Other awarenesses we share not at all. We do not speak of the pleasure of touching ourselves or the curiosity we feel for other bodies. We guard carefully dreams and fantasies which seem bizarre because no one else appears to have them. Later, although not much later, we discover the place for the illegitimate. We are young when we encounter our first "dirty joke," when we discover the girlie magazine, when we hide ourselves away with the rest of the gang to play "Doctor." Experience teaches us when to go underground (or, more accurately, background) with a certain portion of our reality. As we mature, each of us is initiated into the mysteries, trained to know precisely how to negotiate the terrain, how to bridge the chasm, how far and when the dominant upper reality may be penetrated by the lower.

"I Upper and lower serve us as fair names for the fractured experiential realms, corresponding as they do to the two realms being posited by patriarchy: respectively, the one where God, goodness and spirit reign, the other where animals and unenlightened humans thrash about in ignorant slavery to the material. Upper and lower serve us, as well, in connoting higher and base, civilized and animalic, righteous and sinful, good and bad, powerful and subordinated. By resolving into pairs of contrasting concepts, they lead us directly into dualism, a thought strategy which both supports and explains patriarchy's treatment of sexuality. Dualism is a mode of thinking which divides reality into two oppos155

hypatla ing realms of existence, all phenomena then being categorizable as one of a pair of opposites. One of our earliest examples of dualism is the work of the Greek Pythagoras, who over 2500 years ago proposed a schema for structuring reality which included among its principles the well-known Table of Opposites (Windelband 1958, 46-47): unlimited even many left female motion crooked darkness evil oblong

limited odd one right male rest straight light good square

Obviously more than just an analysis of the structure of reality, the Table has attached to it a schema of values, preferences and prejudices. On the side of right, good and light stand limitation, rest and oneness, all implying perfection. Evenness, the tendency to break into parts, motion, which implies change, and crookedness, all supposed imperfections, reside together with darkness, evil, and the evil even darker than evil-femaleness. In time, with different philosophies and different men, the table has grown (historically and conceptually), and dualism has crystallized into something even greater than a conceptual schema; it has evolved into a modus for ordering all reality, psychological and social as well as ontological. As ideas have been assigned to one side or the other, the chasm between the two sides has widened and taken on new significance. The placement of God on the side of oneness, light, and good has compelled or permitted (it is hard to say which) the placement of the devil and all his retinue on the other side, further differentiating the chartacter of the two realms and setting each into a particular valuation, one side now clearly adjudged better, the other more completely relegated to the distaff. Gone is any attempt at the original complementarity. The familiar hierarchy of one over the other, dominance and subordination, good vs. evil, is solidly in place, the Pythagorean Table now elaborated into the pervasive modern mind-set expressed so clearly in patriarchal religion: one God perfection

many the Devil imperfection 156

sheila ruth eternal spirit Heaven life salvation mind rationality ethereal right virtue good light male straight

transitory body Earth or Hell death damnation passion emotion carnal wrong sin bad dark female crooked

As we examine the elaborated schema, we are faced wtih certain provocative questions. Most simply and fundamentally, why? Why at all? Why dualism? What is the point? Why this particular configurationthe association of God and goodness with mind, spirit, and salvation in opposition to body, sin and damnation? Why, besides masculist ego, align femaleness with death and everything evil or undesirable? What agenda, besides a rationalization of power, informs this particular arrangement? In the table and in the religions which are its reflections, this formula is vividly clear: eternal life, godhood, goodness and salvation stand in strict opposition to physical existence, sense, sensuality, death and ultimately woman, who for men incorporates them all. The equation of woman and death is the key to understandingthis mindset, since dualism is a strategy in patriarchyfor avoiding death. It begins in a primary terror: Death is bad, the worst thing conceivable; nothing is more awful. At all costs, it must be conquered, negated. It proceeds: bodies are the things that die, visibly, right before our eyes, displaying to us in painfully vivid terms our own mortality. Our bodies, which betray us to death, are therefore bad. In that case, if we wish not to die, we must separate from our bodies. We must instead posit a different part of ourselves, one that is detachable, which does not die and which may connect us with all that is eternallypleasant, good, and unending. That would be spirit, not body, that is, the opposite of body and bad, hence good. Now Woman, in patriarchy, is body, primarily, essentially, and by 157

hypatla design. In some culturesand languagesshe is referredto as the Sex. To the lords of creation, owners of life, meaning, value and definition, to the Male in his preeminence,Woman functionsto serve his physicalpresence.Neverdesignedas a partneror equalin spiritor mind, her assignedpurposeis to keep his body in comfort, to feed, clothe, warm,clean,and cleanup after;to servicehimsexually,psychologically as well as physically;and ultimately,as pure biology, as animal, to reproducehis animal aspect (Aquinas 1945). The definition of Woman as carnality,as flesh ratherthan spirit, for the maleis verylikelyboth a primalperceptionand a happydevice. To be sure, in his eyes, Womandisplaysherselfas animalic,grounded, as she appearsto be, in physicalprocess. Monthly, in synchrony with the moon, she bleeds from her most secret, hidden recess. She opens her legs and with a great animalgroan she squeezesout living creatures.Into her body she receiveshim, the man, and when in this act, he is himselfmost physical-sharply sensing,processingstuff, participatingin animal conception. Nonetheless,she mightyet be understoodas only partlycarnal,like himself, and in equal part spirit. But that would not do. Wherethen could man dump the aspects of his being which estrangehim from perfect,infinitelife? Whatwould he do with, who could keep for him sensation,passion, and sense?On whom could he blame his mortality? It is She, after all, who suppliedhim with this putrifyingvessel of flesh. He that is bornof woman, of the flesh, is transient,full of trouble and destinedto die. Only he that is bornagain, a secondtime, not in the body,but in the spirit(unbody)is immortal.If womanwereequally spiritwith man, wouldhe not then be equallybody with her?It cannot be. To insureimmortality,woman'scarnalitymustbe acknowledged, insisted upon, detested and finally punished. The myth of Adam and Eve and their ejection from the Gardenof God is most instructiveof this turn of mind. Man, alone and pure, lives in perfectharmonywith creation,needingnothing,providedwith all, certainof the protectionof God (fate and power)and the eternality of life. Woman appears,like him but yet not completely,for she is secondary,not primary(createdsecond, not by fiat out of nothing, but out of man, not for herself alone, as was Adam, but for Adam, as a "helpmeet"),and she is of a differentcharacter,moresusceptible to the seductionsof the snake, morecurious,less disciplined,less obedient. She succumbsto the appealof the flesh, to appetite,and leads Adam to the same evil. The Power is angry, robbed of some of its preeminence-the exclusiveuse of the knowledgeof good and eviland the humanpairare thrownfrom the garden,barredfrom perfect, eternallife by their "original" sin, obedienceto their bodies instead 158

sheila ruth of the Power's demands. Eve is so obviously the author of catastrophe; it is her carnalitythat creates the sin, and carnalityis her punishment-to give birth (her fundamental primitive function) in pain, to be put to use by her husband, and to be estranged from the snake, matriarchal symbol of feminine wisdom, creativity, and regeneration. Eve is condemned to alienation from mind and subjugation to body. Adam must toil until salvation, keeping all the while careful reign over his now properly subordinated, appetitive helpmate.5 A story often told, repeated in varying languages and cultures, the myth is a way for men to tell again and again to each generation of men that they are in danger, that the threat is mortal, and that escape can be secured only by the suppression of appetite and of its ultimate symbol, Woman. Rather than incidental, it is crucial that women occupy the distaff side of the dualistic dichotomy, apart from man, opposed to salvation. It should be noted that the dichotomy drawn in the Table of Opposites presents not only an interpretation of cosmic reality but a picture of social reality as well. The categorization of concepts in the Table mirrors the enumeration of traits assigned to men and women in the Western gender dichotomy, the entire superstructureof masculinity and femininity. One can see clearly embedded in the side of pristine perfection the stereotype of men, rational, duty-bound, principled and emotionally under control. By the same token women are said to reflect the side of chaos, emotional, irrational, unpredictable, and obsessed with their bodies and appearance. We must not forget, furthermore, that the gender bifurcation of our culture functions prescriptivelyas well as descriptively:women not only are inferior intellectually to men (we are, after all, passion rather than mind), but we ought to be; that is to say, it is desirable, proper that we feel rather than think, that we be heart rather than head. Dare we hypothesize a most monstrous possibility then, that given the prescriptive function of dualism, women, lodged on the side of evil and damnation, not only are bad, but ought to be? (Didn't the medieval fathers grant us a place in heaven only when we have shed our sex and become as man?)When we are female, when we act as female, when we symbolize female-in our sexuality-we indeed should be, ought to bespeak, evil. It would appear that the patriarchal conception of reality requires that women be evil, for in it we are sex. In the dualistic schema of Pythagoras and in the present, death, body and evil stand together in defiant opposition to God and eternal life. Small wonder that sex, sense, and sensuality, together with their carrier, Woman, should people the ranks of the Devil and his world. May we then now be ready for a final 159

hypatla emendation of the dualistic table? To the side of God and perfection we must add the requirements of an anti-body ethnic and its opposite to the realm of death. God the Devil One many perfection imperfection eternal transitory body spirit Heaven Earth and Hell life death salvation damnation mind passion rationality feeling and emotion carnal ethereal sin virtue bad good dark light male female asceticism sensuality instrumental sex experiential sex (sexing) (reproduction) pleasure pain, mortification abstinence indulgence impure pure clean dirty wrong right crooked straight IV There appears to be little question that configurations of this kind, opposing pleasure to pain, life to death, and revering the latter over the former, are associated with masculism, with patriarchy and malecentered thought processes. Current research into matriarchal religion and culture6 in ancient times and the present supports the thesis that gynocentric consciousness is life-professing and earth-centered and the androcentric mind is the opposite. In Beyond God the Father (1973) and even more so in Gyn/Ecology (1978), Mary Daly has documented and articulated the profound necrophilia of patriarchal societies. One wonders what gives rise to this. It is growing increasingly apparent that women have had a special affinity for life, for life-processes, for the cycle of birth-growth-deathbirth, on the earth and in her creatures, for the concrete and daily "trivialities" of lived existence, and that men's preoccupation has been 160

sheila ruth with the other side, with death, dying and killing, with "heaven" or not-earth, with abstraction and its elaboration. It is not that such an insight is new: for centuries women have been blamed for our triviality and are associated with the "immanent," while men have had stewardship of the "transcendent." What is new is the realization that the value of each may have been turned upside down, and what is good and bad in both may have been confused (Gilligan 1982). Perhaps,we are considering now, it is the mundane, the trivial and the concrete which is sacred and the abstract which should be its servant. Perhaps obsession with principles and universals at the expense of the particular leads to the kind of distortion we observe in our experience of the sexual. If it is true that the abstract has taken precedence over the concrete, it has done so through masculine prerogative, because for centuries men have appropriated and owned the public consciousness. Why might men, so much more than women, be predisposed to the alluring emptiness of abstraction? Women's lives, in primitive communities or in modern technocracies, among the poor or the rich, in the past or in the present, have certain powerfully defining commonalities. Almost universally, we are not only the producers of living beings, we are the maintainers of life in oneon-one, basic and immediate relationships. Not only do we provide with our bodies the blood and bone of other bodies, but we feed them, not in just a distant way, as by bringing into proximity with the other a piece of meat or a bit of grain, but in the most intimate way: we open the mouth of the other and place in it food we have mashed or softened, liquid we have carried, or even our own breast. We clean that mouth of its droolings and fill it again until the other is satisfied. We clean that other being, not merely its surroundingsor its belongings; we touch with our hands or our mouth its body until it is free of dirt and discomfort. We hold those others close to us when they need; we feel their hearts beat and smell their sweat, taste their tears. They are rarely far from us, if not physically, emotionally. Often we do these things for the grown as well as for the very young. Nor does this reality often change whatever other activities may require our energy or time. Women's bodies and experiences are grounded in the business of immediate, physical existence. Those of us even who do not ourselves give birth and nurture still belong to the class of beings who do and are therefore heirs to that consciousness. We cannot escape from that reality, and in any sane universe, very likely we would not want to. Men's lives are very different. Historically and in the present, based both in biology as well as choice, males have been removed or distanced from the very immediate processes of life maintenance. To any woman who has carried a child, given birth and nursed, it is obvious that such 161

hypatla experiences have profound effects upon one's sense of reality and one's place in it, upon one's values, beliefs, and behaviors, and ultimately upon one's conception of the cosmos, life, and death. They make one different. Is it not as obvious that the same differences would be occasioned by distance from the rest of the life-activities, the culturally based, and in proportion as one is distant? In refusing participation in the concrete "trivialities" of interpersonal care, men have separated themselves from the very meaning of life and its sense of belonging. Isolated from human/animal meaning, literally from human nature, men become alienated from the chain of existence, from the sense of continuity that is yielded by the attention to generation (in both senses of the word)-from the past to the present to the future. There are serious consequences, separable in our minds, yet related: men lose a sense of the meaning of life which is life. They must find or create or invent it somewhere else. Alien to the concrete, the real, they are condemned to seek refuge in abstraction, sometimes completely unconnected to lived reality. They come to fear death, obsessively, hysterically, as those who can find no reasonable resolution, no accommodation as women do in their participation in their cycle. Ironically, men's flight from life propels them to a flight from death, which is meaningful only as a part of life. Conversely, the aversion to death condemns them to an aversion to life. That is the source of masculine preoccupation with death and the static, that is, male necrophilia. Want of meaning, the aversion to death, and the predilection to abstraction combine to form the substructure of patriarchal consciousness: separation from life, to the fear of death, to the rejection of body (earthly life/psychic death), to the denigration of sex (hence life, hence woman, hence Earth), to abstracted reality, to dualism, and back to the separation from life, which spirals in increasing intensity and madness.7 In patriarchal consciousness all become caught together in an intricate web of relation-death, bodies, women, sex, contempt, violence, control, power and God.

notes 1. Discussions were far more direct in the earlier days of the women's movement. I refer the reader to the work of Andrea Dworkin (1974 and 1976) or Shulamith Firestone (1970). 2. Ann Ferguson, Ilene Philipson, Irene Diamond and Lee Quinby (Vance and Snitow 1984). 3. See Signs (1980). This is not to say that such explorations are not extremely valuable. They are. Rather it is to say that the talk stops short of the mark, to bring the experience itself into sharp relief against the environments, social and personal.

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sheila ruth 4. In addition to the perennial Kinsey reports or Masters and Johnson, see Hite (1974) or Friday (1974). 5. An interesting discussion of the Adam and Eve episode is to be found in Stone (1978). 6. See, for example, such works as Ochs (1977), Gray (1979), Starhawk (1979), or Adler (1979). 7.Capturing the connection of war, violence, death and sex was the film Dr. Strangelove, or How I Learned to Stop Worryingand Love the Bomb, written, directed and produced by Stanley Kubrick, Shepporton Studios, England. 1964.

references Adler, Margot. 1979. Drawing down the moon. New York: Viking Press. Aquinas, Thomas. 1945. Whether woman should have been made in the first production of things? Summa Theologica, Part I, Q. 92 (The Production of Woman), Art. 1. Basic writings of St. Thomas Aquinas, ed. A.C. Pegis. New York: Random House. Daly, Mary. 1973. Beyond god the father. Boston: Beacon Press. 1978. Gyn/Ecology. Boston: Beacon Press. ----. Dworkin, Andrea. 1974. Woman hating. New York: E.P. Dutton. ----. 1976. Our blood. New York: Harper & Row. Firestone, Shulamith. 1970. The dialectic of sex. New York: Bantam Books. Friday, Nancy. 1974. My secret garden: Women's sexualfantasies. New York: Pocket Books. Gilligan, Carol. 1982. In a different voice. Cambridge:Harvard University Press. Gray, Elizabeth Dodson. 1979. Green paradise lost. Wellesley, Mass.: Roundtable Press. Hite, Shere. 1974. Sexual honesty: By women for Women. New York: Warner Books. Ochs, Carol. 1977. Behind the sex of God: Toward a new consciousness transcending matriarchy and patriarchy. Boston: Beacon Press. Person, Ethel Spector. 1980. Sexuality as the mainstay of identity: Psychoanalytic perspectives. Signs 5 (4). Roget's International Thesaurus. 1946. New Edition. New York: Thomas Y. Crowell Co. Signs. 1980. Special issues: Woman sex and sexuality 5 (4); 6 (1) Starhawk. 1979. The spiral dance. New York: Harper & Row. Stone, Merlin. 1978. When God was a woman. New York: Harvest/Harcourt, Brace, Jovanovich. Vance, Carol S. and Ann Barr Snitow. 1984. Forum: The feminist sexuality debates. Signs 10 (1). Windelband, Wilhelm. 1958. A history of philosophy, Vol. I. New York: Harper Torchbooks. 163





elizabeth janeway ImproperBehavior:Imperativefor Civilization The power to define roles and relationships, assign priorities and prescribe behavior is the technique for government which most readily legitimizes authority. Improper behavior challenge and Establishment before conceptual ideologies appear as alternative charts for a social world. Though deviance may result from personal causes, large-scale popular disaffection is socially meaningful. Feminist activism indicates strains in the entire social fabric resulting from long-term economic and cultural shifts. Defining such social movements as important only to their immediate proponents is a political tactic for division.

I came to philosophy late in life; if, in fact, I can be said to have come to it at all. But a home-grown native variety of philosophy has been twining its way into my consciousness for some years now. It is both pragmatic and political. But though it begins in the down-to-earth everydayness of life, it seems to be leading me into abstract thinking and concern with principles, that is if you will allow that principlesaren't necessarily static but reflect changing interpretations of reality that are involved and interact with actual experience. I have been thinking about definitions and particularly about the astonishing reach and influence of the power to define. I think it is the greatest power in the world. It consists not only in naming, but in various steps beyond the identification of an entity, although that's in itself a vital function. Tying up a group of perceptions and labelling them so that we can recognize them when they recur is to lay the basic stratum of memory. And what would we be without memory? Either autistic children or senile aged, it appears. Our lives would be repetitive experiences of strangeness, moment upon moment, as if, like ET but without his charming personality, we had suddenly arrived on a new planet and were faced eternally with the effort to learn the ropes. I say, without his personalitywe would not have had a chance to develop any sort of pesonality, merely to shrink, be silent, and fail to respond. But in fact what all of us do at birth is precisely to arrive on a strange planet with a need for placing ourselves in these surroundings Hypatia vol. 2, no. 1 (Winter 1987). © by Elizabeth Janeway.

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hypatla so that we can discover and/or create a self-to-be. Fortunately we have evolved a capacity for remembering, a capacity that exists somewhere in the tension area between brain and mind, and so we do learn some kind of roles and rules and placements of ourselves and the context of our existence. We survive because we remember from one day to the next the events and entitles and processes of life as the shock of the new dissolves into recognition. We did this out of need, in order not to be shaken continually by surprise and so that our lives might extend beyond a momentary immediacy in which any meaning except "This is new" has got lost. If the sun rose this morning as it did yesterday, we expect to see it again tomorrow. And because it has become a recurrent event and a permanent entity, we give it a name. The power of naming is the power to establish the existence of something we want to know when we meet it again. Labelling is the start of defining things. What is named, according to the dictionary, that great compendium of hibernating labels, is "the essential nature" of the matter we're concerned with. Imagine that! Knowing the essential nature of what we meet in life! That's quite an accomplishment. It suggests that even now names retain some of their ancient power from the time when reciting them in a spell was believed to call up the spirits or demons one wanted to evoke, for whatever purpose, good or bad. That was dangerous knowledge, both spells and names. It was not to be undertaken by ordinary mortals only by some priesthood of experts in magic sorcery. Even today, the capacity to know and to use the essential nature of some entity (chemical, genetic or physical) is regarded with respect and often with fear. The essential nature of things spiritual and temporal still concerns us, and it is the capaicty to know it and to name it in order to control it that the power to define claims. At least it claims the ability to name, and to those who aren't experts, knowing the name is often taken as being equivalent to knowing the nature. But naming is only the first step in the process of defining. Names have no meaning in themselves until they are placed in relation to other names, thus forming connected patterns. The patterns are what really tell us about the essential nature (as contemporary definers see it) of the labelled entity. They clue us into the kind of thing or person or event or process that we are faced with: Is this a moral matter, is it an economic problem, is it individual and personal or a question demanding public attention, how important is it to us or to society? If, for example, you take the word "abortion" and subject it to these questions, you can quickly see why disagreement is rampant. If we accept its significance as being moral, as a number of male dominated institu166

elizabeth janeway tions have been insisting, then we can't think of it in other terms without laying our ideas open to being labelled immoral. Which means that the consequences of bearing a child and raising it to maturity, with all the economic, social and personal difficulties that may bring in its train, have to be excluded from consideration. And yet those matters surely must affect the life of the child, as well as that of its mother. The confrontation of "creation science" as a teachable discipline like evolution is another conflict where argument will never get anywhere-because neither party can accept the premises of the other as being relevant. Incompatible frames of reference make fruitful discussion impossible. Actually, I prefer to think of these linked premises as being not frames of reference so much as maps for maps introduce the element of purpose which is never in fact absent from definitions. Maps are there to tell you how to get from hither to yon. You may muse on them romantically, of course, reliving your own past or that of Marco Polo, but these static representations of locality are interesting because they link localities for people who need to know, and the reason they need to know will have something to do with movement, of themselves or of hostile armies, of unwelcome immigrants or returning friends. Calendars chart time for us in a similar way (and the dates that calendars record tells us a lot about the essential nature of the society that constructed them). And when we turn to experts of any sort, we are asking for guidance so that we can find our way through the maze of problems that have invaded our lives. Definitions are there to give rise to prescriptions for action. Imagine, for example, a worried patient in a doctor's office. "Doctor, what's the matter with me?" asks the victim of physical circumstance. "I'm not sleeping, my food doesn't agree with me, last week I broke out in this terrible rash-what's wrong?" What's being asked for is, apparently, just a label, the name of this distressing complaint. But suppose the doctor were to supply only that and nothing more? Suppose this insensitive medico said, "Oh sure, I can tell you what's wrong. You've got measles, or AIDS or leprosy or shingles. The nurse will give you a bill, goodby." How furious the patient would be! What we want from the doctor isn't a label, it's prescriptions for medicine and a regime that will cure us. In the same way, we need more than labels or placement on maps to deal with social problems. Unfortunately we often feel so inexpert and inadequate when we confront them that we're ready to accept a pseudo-solution from anyone who sounds plausible. Of course, one thing that makes for plausibility is memory-we like solutions that are familiar. The idea that traditional family values will tell parents how 167

hypatla to raise dutiful children, love each other and live comfortably in a nontraditional world is tempting. It recalls (or seems to) a mythical golden age of stability and community. Now a little reading in the social history of working conditions, hygiene, health, and life on a dirt farm would do a good deal to dim such nostalgic dreams and reconcile us to the present or, better, produce inventive ideas that might work more productively than old ones. But we need maps, we need rules, we need roles and if no useful new ones present themselves, we cling to old ones. These rules and roles tell us how to behave-properly, practically, effectively, without getting into trouble or sinning or breaking the law and in a manner that brings us credit instead of shame. This multidimensional social world of rules we take to be a learnable representation-a model-of how the actual world works. We won't find our way around out there, we believe, unless we have been educated (or have trained ourselves) in the activities prescribed by our maps. Who draws up the maps from which rules and roles are taken? Who are the definers? They must be powerful people and persuasive people, expert in propaganda and politics. That makes them members or representatives of the Establishment. True, the Establishment prefers to disclaim the role of definer and to declare that the rules of existence have always been there, they are natural, dictated by the mind of nature's God. It's impossible to argue with that contention head on since one would be arguing with very powerful people who are committed to their own maps, and dependent for their power on having us accept them. They won't let us opt out of agreement easily, nor are they often ready to change their minds. But it is possible to comment obliquely by pointing out that nature's God seems to change his mind from time to time. At any rate, a lot of rules have faded away over recent generations. We can also note that non-members of the Establishment have from time to time bent the rules till they had to be changed, and that progress and revolution, along with war, famine and plague, have do so, too. In the end the definers are all of us, I suspect, though some certainly wield more power than others. If it's a collaboration, then the rulers of nations, inspired by sages, prophets and even poets, put forward rules and the rest of us test them becaue we can't help ourselves. If the tests don't work well enough, we-the implementers-will juggle them about a bit and nibble away at the machinery until better perceptions of reality seep into the mentalities of the powerful like groundwater. But as long as we work away at the rules laid down by authority, we are accepting them as legitimate. 168

elizabeth janeway And that is the chief aim of the powerto define:to persuadeus both practically,politically and intellectuallyto accept the maps and the prescriptionsgiven us by authority. How do we contest the rule of authority?Not philosophically-or rathernot in the first place by connectedthought, ideology, or the developmentof anotherset of rules-all that comes later. We do it by breakingrules, becausethese rules have ceased to work. We do it by what legitimate authority at once describes as IMPROPER BEHAVIOR.That label can be appliedto askinginappropriatequestions, to arguing,to doingthingsin disapprovedways,to unisexdressing and long-hair-on-males,as in the Sixties,to demandingdesegregation of schools,or equalpay for workof comparableworth,or an Equal RightsAmendmentand effectiveaffirmativeaction-but by that time, we are on the way to framingour own definitionsand our own maps. The start is with the rule-breakingthat the Establishmenttakes as rudeness,deviance,criminality,and labels"improper"becauseit can't imaginethat rule-breakersmight in time decide not simply to break limitingrestrictionson their activitybut to challengesuccessfullythe wholestructurethat has createdthis systemof rulesand buildanother. Philosophicargumentappearsto me to be both a summitof confrontation, and really ratherrare. If you want to know I think that its effect, in the end, is a lot less importantthan rule-breakingand the actingout of dissentin dailylife. Not that I personallydisliketheories or arguments,not at all. I'm increasinglyaddictedto this activity.But if we are looking at the implementationof change, we are looking at action, and in such periods statementsof principlefind themselves reducedto slogans. In theory, of course, rationalthought shapedby philosophicprinciples should direct action. I doubt that happensvery often. On the one hand, activistsaren't usuallygood listeners.On the other, when you get rationalthought too close to action, philosophycan harden will easilybecomerules-thatinto ideologyand hypotheses-to-be-tested At that point, new forms of improper should-not-be-challenged. behavior are likely to manifest themselvesand greatly distress the ideologuesof revolution.Awkwardquestionswill be askedwithinthe movement,minimizerswill attackmaximizersand raisedoubtsabout their motives, new tactics will be used in public without receivingan official imprimatur.Argumentsamong true believersseem to be a universalphenomenon.If theyareseenas the productof realistictesting of new prescriptions,they can keep a movementalive. But if they are definedas unforgivableschisms,that revolutionwill have reachedthe stage of eating its children. 169

hypatla Why is dissent so much feared, even by powerful and coherent Establishments which are sure they wear the garments of legitimate authority? I want to offer an answer to that question, and it has to do with gender. Perhaps I should say that I want to offer a hypothesis for discussion and thought, not a rigid dictum. The idea that gender difference is fundamental to social roles within a society, and to the structure itself, is familiar if not banal. I want to suggest that this difference, this binary polarization of the human race, also gets into our modes of analysis and directs the sort of philosophic questions that we find it natural to raise. Does the acceptance of the idea of differenceas-otherness, as being alien, lead us to define the world we know in terms of either/or, of inclusion and exclusion? Our definitions, that is, may claim to describe the essential nature of the entity defined, but do they not proceed by distinguishing through differentiation? That is no doubt a necessary part of definition-but does it not tend to become accepted as the only way to interpret the world? Does the primary difference of gender, older than the species, determine the way we understand-and act upon-other differences? The artifacts and the art of pre-history, the archeological remains and ruins of proto-history, suggest that the two-way split in humanity between male and female, demonstrated by body-difference, has always been regarded as enormously significant. Individual lives replicate that experience, not just of gender itself, but of its central meaning. Man's world vs. woman's place is an ancient split in society, and it's still with us. We learn gender roles early, and in so doing we learn that these roles direct us to behavior that differs by sexual label. My hypothesis is that we humans become habituated not only to acting out the importance of gender difference, but to thinking in terms of a division of the world by two as being the proper form of intellectual analysis. We seek to know the essential nature of an entity by deciding what it is not. And such an approach invites polarization-as if existence presented us with a series of tests that had to be answered either true or false, with no opportunity for saying, "Well, yes, maybe," or "It seems to me it's both-and something more as well." That's a dangerous way of analyzing our world. Does it not lead to the use of categories that say: Normal or abnormal, right or wrong, true or false, good or bad? Doesn't it exclude or at least downgrade the value of variations and shifts and innovation-and all the interactive richness of existence which we really know is there? Doesn't it actually blind us to a lot of what's there? Take a few examples of how we see difference, and of how we judge its significance and label it as separate. One clue to gender-polarity as the source of our labelling lies in the importance we attach to physical 170

elizabeth janeway difference. Male and female bodies can be perceived to carry different marks by anyone who looks, and if you look at sexual characteristics, the division is binary. But other differences that we regard as important can't be characterized into a two/way opposition of either this or the other without stretching-or do I mean contracting? Race differences are much more apt to produce a range of variation instead of opposition. Ethnicity is certainly not a fact of nature but the product of cultural learning with some genetic inheritance present fairly often but not always. Divisions by caste or class or rank in a hierachy can sometimes be picked out through observation of physical characteristics-but they may be due to malnourishment in childhood, or training in manners of deference, and very often to costume, to which we shall come. These are mimic presentations of body difference. Tell me why we should enforce them and set such store by them if we didn't find the fount of our judgment of difference in gender-that is, in the importance we attach to sexual difference? Another example: there is probably no situation in which the defects in defining by polarization are clearer than in public treatment and perceptions of lesbians and gay men. These are people who are denying the actual importance of physical markings as a means of defining sexual preference. They are attacking gender roles at the root. Result: these people are labelled abnormal-a name that sets them drastically apart from the human community. They aren't just different, they're alien. Things have changed recently-a bit, a bit. Don't hold your breath. Even liberals, even some feminist groups, find it hard to feel a real community with men and women who reject the gender roles that are so significant in our society, even if those roles have shifted somewhat. These people are subjected to a ruthless enforcement of definitions, and even some who are ready to argue with the definitions in principle are not happy to have the victims of enforcement speak up on their side. There is no more vivid illustration of the plight of an interior self in conflict with exteriorjudgments than that of homosexuals confronting gender roles; and the power of gender roles, even among those who aren't happy with them, can be judged, I repeat, by the difficulty that straight women have had in taking lesbians as full allies in our struggle for equality. The ancient influence of bodydifference as marking a real essential nature still operates. We can also see the exaggerationof any small mark of body difference in setting apart people of other races. We know from our own history that one didn't have to have very dark skin to be labelled black in the South. No variation mattered-black or white, said the rules. In South Africa, the rather embarrassing presence of emigrants from India has validated the existence of a third group which also includes those labelled 171

hypatla "colored", people whose forbears, that is, were both white and black. But is this third group able to mediate between blacks and whites, or even to mingle with the white Establishment? Of course not; it is set apart into still a third form of exclusivity. That is not pluralism, but a perverse extension of polarization. On plenty of occasions diversity is defined as otherness-as a difference that excludes the marked individual from normality; and to make the otherness vivid, any small variation can be exaggerated into caricature. The anti-semitic journals of Hitler's Germany portrayed Jews as monsters; similarly, 19th century newspapers in Eastern cities pictured the Irish as clumsy clod-hoppers. In other circumstances, body difference has been created. Look up the word "stigma" in the dictionary. Its root is graphic: "brand." That is, a stigma originally was a deliberatelyproduced scar, burned into the skin, to separatethe bearer from the rest of us human creatures. Other physical mutilations were common too: an ear cut off, even a hand. The Scarlet Letter, A for adultery, that Hawthorne's heroine was forced to wear seems milder; but the effect of uniform as a definition of acceptability, or of ranked degrees of status, can produce social stigmatization and indeed may be intended to do just that. In wearers of uniforms, identity is made subordinate to the role. Behaving improperly is very easily noticed. Anyone as old as I am, who remembers the last time when Americans were widely and frequently seen in uniform-that is, during World War II-will also recall that Military Police could be found patrolling the streets. GIs who didn't shape up were swiftly swept off out of sight. But more fundamentally, dress affects one's sense of oneself. In our affluent times, we pretty much feel that we choose our clothes ourselves, with an eye to fashion, of course. But we don't choose freely, across the board. We present ourselves in accord with our station in life, our purpose in public, and for women, of course, our desire to attract the opposite sex. Identification that is begins by presenting not the self, but the role. And always, gender roles are primary. It seems to me likely that in what Kipling (in the Just-So Stories) called "the high and far off times" in which humanity was becoming human there was a larger basis for definition by gender than there is today. Child-bearing and rearing did prevent women heavily pregnant, women with nursing babies, and women in charge of toddlers from pursuing large and dangerous animals. Daily occupations, that is, were affected by one's sex in a way that no longer is necessary. But even then, there were women who were none of the above; and the label "female" prevented them from taking part in male activities even if they could easily have done so. We see, that is, how labels can be ex172

elizabeth janeway tended and prescriptions for action exaggerated to exclude members of a group simply because they're members of a group, not by reason of actual capability. Any physical difference can thus be accentuated and given significance; and in a society where authority is granted legitimacy and enjoys using the power to define-and what society does not?-the tendency to find or invent physical differences will exist. My hypothesis, to repeat it, is that the strong influence we grant to body-signs as a mark of polarized otherness points to an origin in gender. Definitions clearly enforce themselves by means of social controls, with stigmatization as the back-up sanction: if you don't act like a nice girl or a lovely lady-or as a capable male, i.e., capable of violent reaction to disagreement-you will find that your status is lowered and your field of activity is narrowed while you are pushed nearer and nearer to marginal ranking-off the map. But once definitions are accepted and internalized into roles, they persist by sheer habituation. Get up in the morning and put on female clothes. See the family is fed. Go out to a job which is still usually affected by your gender, or stay home in woman's place, tidy it up, plan meals, go to market. Most of us do both, of course. That is, we play two roles. But the old one is the one that defines us and the one we feel inwardly responsible for. The habitual activities of Mme. Maigret, so lovingly described in Simenon's detective novels (and apparently so absent from Simenon's marriages), flicker attractively in the sequence of actions that the role still throws up on the cave wall as prescriptions for doing. Especially so is that the case in caring for children. If we let things slip here, we stigmatize ourselves-that is, we feel guilty. It's certainly true that more men than used to share these cares and responsibilities; but in social terms, they are still female obligations. For they are placed on the map that says private duties, done as a favor to women if anyone else undertakes them. I know, I know, that some men don't feel that way. But I am talking and must talk about socially accepted roles because I am talking about definitions, and definitions have to be common to a society if they are to be understood. The male role does not really include "good, close fathering" as yet. It turns up in television ads-but oddly enough not when men are expected to be a large part of the audience. Those ads show in soap opera time, not during sports events. In other words, they are aimed at women. And what in fact, do they convey? It's an interesting question. Do they, by making male care for children seem legitimate, also make it desirable and expected so that if it isn't received a woman has the right to be resentful? The value that the Establishment attaches 173

hypatia to the tacticof "divideand rule"suggestssucha motiveto a suspicious mind. Or do they implythat it shouldbe regardedas a favorthus raising an expectationof gratitudein the male, and anotheroccasion for resentment if gratitude isn't displayed? Do they even carry an undergroundmenace:if you don't look after your childrencontinually, like a good mother, you will lose them to their father?After all the traditionalfemalerole has alwayspresentedthe love of the children as being the mother'sproperreward.Is child-care-by-menan invitation to jealousy in the female?Becausesomeoneelse is tryingto take over "our job"? The simpleanswer,I guess, is that advertisingagencies are one placewherenew ideasget testedfor acceptance.Malechild care is here, yes indeed;but marketresearchersdon't yet take it for granted. Whichmeansthat the essentialnatureof the male is still held to be provider,not caretaker.If we go back againto humanorigins,we see the idea defined underthe label of "Man the Hunter." Now in fact it's fairlywell knownthroughrecentresearchby anthropologiststhat huntingtribesare betterlabelledhunter-foragers,and that the women gatherersof nuts and berriesand roots, of fish and smallanimals,probablyprovidedmoreactualfood thanthe malehunters.But "Hunter" as a label, incorporatesanotherpartof the malerole, whichis violence and willingnessto risk danger.That's felt to be an honorificquality, and certainlycontributedto the third elementof the male role that's speciallyhardto get rid of, whichis superiorstatus. Overmilleniathe label remainedwhile the duties changed: man the breadwinnervs. woman the homemakeris the one that we now find most acceptable. It marksmen as responsiblein the public world, women in the daily tasks at home. The public role of women is the one that is most disputedtodaydisputedby the actualitiesof changeand by the women who respond to these changesby demandingchange in the role assignedto them, but it is not the only source of dispute. One aim of my argumentis to demonstratethe difficulty with which roles can be changed:they are the productof definitionsand maps for behaviorlong entwined with a cultureand a society, and dependfor changeon the recognition of a loss of supportin the experimentalworld. The legitimacyenjoyed by an authoritywhichcan marshalon its side the powerto define will tend to regarddemandsfor change as unwarranted,unless and until if has come on these changes itself. At that point it's likely to drop outmoded rules quietly. Until then, it will characterizeprotests and disagreementas evidenceof improperbehavior,due-to ignorance(in which case the challengerscan be labelled as silly children) or to criminality,abnormality,deviance-in whichcasetheyarebad, or mad. 174

elizabeth janeway In neither situation are their arguments worth listening to. I ask again, who makes these decisions? Who are the definers? Some sort of Establishment, I answered. Let me now point out that all Establishments are male, though agents and representativesof authority may certainly be female. They are women who have accepted the structure of life as defined by authority. Which is something we all have done to some extent. Faced with a role, one does rather tend to settle into it. To continue: the gender role of males, as provider, responsible in the public sphere, and as definer, defender and administrator of the Establishment prescribes behavior and activity. Acting the role is no easier, I dare say, than acting the female role. Life in the public sphere is dangerous, demanding, and unexpected. By contrast, the home is perceived by definers as safe, quiet and comfortable. The male obligation to protect women and children justifies violence-that's what the role says, anyway. It requires also that emotions be repressed, except the anger natural to the defender and protector of the weakest of us. The masculine attributes of violence and the repression of feelings, have been much discussed. But there is another that has received less attention though it is highly important. It is the duty to define that of course goes with the power to do so. The need to explain the chaotic and diverse universe in an orderly fashion devolves on the intellectual establishment. Priest kings, philosopher kings, sages, professors, pundits and poets have sought to do this throughout the ages and it's a damned hard job. But what philosopher king would stoop to give up the power? What ambitious male would be willing to retreat from the right to name, to place on a map, to assign a priority to the matters that he encounters? All right, a few. Monasteries were invented for them. But in the main, no. The superiority of the male status makes it extremely hard to abandon. On the other hand, the Establishment must face the need to make its definitions stick. You can label all you want to, and declare this or that to be significant, can decree that it be fulfilled at once in action-but what happens if the sullen populace doesn't agree? Arguing women, disobedient children, rebellious workers, sullen servantswhat do you do? I think you act violently. I think the male license to use violence in the face of danger naturally extends itself to using violence against these idiots you are supposed to protect if they don't do what you tell them. I think that dividing the world in two by gender, and assigning the power to deal with the public sphere to just one sex, inevitably invites oppression. For responsible males can't let other people's judgments weigh too heavily in their assigned job of explaining, defining, defending the world. Is this not the world of reason, where 175

hypatla distracting emotions have no place? Doesn't that mean that these foolish rebels have to be ignored, and be silenced if they won't shut up when they are told? That element in the male role is not easy to recognize if you are male. Rejecting it invites a labelling of yourself as effete and cowardly, a label that can be a real invitation to stigmatization and violence against oneself. Anyone who believes that the world is really polarized by gender, with men as superior, has to resist giving up the male role because femaleness is so unattractive, so dangerous because it is inferior. The macho mystique would say that any non-macho male has to expect to be raped, like a woman. That keeps macho men in line, you bet. Ideas and experience, philosophy and fear of marginalityblend here, and they keep the male role in being. And the male role itself keeps men suspended in a state of otherness. Traditionally, women have been able to aspire to male virtues. Today, women in the work-force can act out ambitions, can compete male-style, and it will displease some men but it is not felt to be shameful. Male superiority permits it. But male superioritycondemns men who fall away from its standards. They have to maintain their distinction, their difference, their otherness which has been defined for so long as proper to men. As definers, of course, it's possible, indeed easy, to switch the labels so that exclusive masculinity becomes normal, and otherness is a mark of womanly inferiority. Thus, inferiority and womanliness being matched up, and otherness-from-womenbeing a male necessity, otherness from any variety of difference becomes obligatory. It's a duty for men to be superior, to protect the weaker by violence which is turned against the weaker when they are ridiculous enough to differ from their masters, and to deny the emotions that prompt these brave creaturesto wish, from time to time, that they might sit down and tremble. I believe that this ancient division by gender, which is still acted out so that habituation continues, and is still enforced by the threat of stigmatization, has engendered and deeply influences the processes of mind. A binary polarization of the human species becomes the basis for defining by exclusion. Now, indeed we do have to identify events and processes and things and people from one another, in order to recognize them when we come on them again, as I started out by saying. But when these distinctions are based on the sole experience of one superior group which is made self-perpetuating by reason of its power to define, we limit what we can observe, and we encourage the exaggeration of difference into otherness. Otherness then becomes the significant element in definition, and we lose track of the interior essential nature of entities, whatever the dictionary may hopefully think. 176

elizabeth janeway (Hopefully is used correctly there.) We fail to take account of what exists inside, what is felt intuitively and emotionally and we look only at external qualities. Judgment comes to depend on how we are perceived by others, not by ourselves. Perhaps that's the way that the world has to work. Perhaps the human race has to base its judgments on social perceptions. Perhaps internal knowledge is incommunicable and can't be weighed until it can be acted out publicly. I grant that. But are our current practices the best we can do? If so, they don't have to fear improper behavior. In a perfect world it would clearly not exist. Well, obviously we are far from perfection. Rules and roles are still being challenged and the flowers of pluralism push up in the stoniest ground. For myself, I am ready to praise improper behavior, irritating as it is when it erupts under one's feet and disputes one's own definitions. Let us consider that it may have something useful to say and useful to hear, that re-drawing maps may bring them closer to daily existence and actual needs. The power to define is great, but knowing when it's time to redefine one's judgments can be very helpful indeed.

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harry brod The New Men's Studies: From Feminist Theory to Gender Scholarship The paper situates the new field of men's studies in the context of the evolution of women's studies. It argues that men's studies' distinctive feminist approach to men is a necessary complement to women's studies, citing paradigmatic examples of new perspectives. In tracing women's studies' development, the paper argues that reconceptualizations of "gender" resolve tensions between much of women's studies' non-essentialist empirical social science describing "sex roles" and much of feminist theory's essentialist celebrations of women's core selves.

eminist scholars have developed a tradition of using the phrase "men's studies" as a pejorative way of denoting the traditional academic curriculum. Hence, the volume of essays edited by Dale Spender subtitled The Impact of Feminism on the Academic Disciplines carries the title Men's Studies Modified (1981). In the same vein Judith Shapiro, in "Anthropology and the Study of Gender," writes that the emergence of women's studies programs is "a reflection of the extent to which the apparently unmarked courses in the academic curriculum constitute a de facto men's studies program" (1981, 11). Implicit in both of the above is the contention that the necessary role of women's studies is to fill the lacunae regarding women in the established corpus of scholarship and teaching. In this context, the proposition that feminists should endorse a call for the greater propagation of men's studies seems preposterous. It appears to violate the very raison d'etre of women's studies programs and departments, designed to redressprior overemphasis on men. A call for a men's studies program is likely to evoke from women's studies scholars a response akin to that of Jan Bradshaw who, at a conference on "The Women's Liberation Movement and Men," commenting on how far things had gotten out of hand in the United States, reported to her colleagues in England with horror that "there are Men's Studies collections in US college libraries!" (1982, 184). Yet, the position I shall propound is precisely that feminist scholars should endorse the concept of men's studies, though a men's studies of a kind decidedly different from traditional scholarship. I shall not Hypatia vol. 2, no. 1 (Winter 1987).© by Harry Brod.

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hypatla simply be claiming that men's studies is compatible with women's studies, though, as shall be obvious, I believe that it is. I shall instead be making the much stronger claim that men's studies is essential to fulfilling the feminist project which underlies women's studies, and that feminist scholarship cannot reach its fullest, most radical potential without the addition of men's studies. This latter claim clearly requires extended discussion. Before delineating the contours of this new men's studies, however, I shall find it necessary to trace the etymology of the concept of "gender" in its current usage, since several of the reasons I shall adduce in favor of a program for men's studies have already gained some degree of acceptance because they are implicitly present, though insufficiently appreciated, in the trend favoring the reconceptualization of the field as focusing on "gender" rather than simply on "women." My purpose in this paper is to investigate the relation between the emerging field of men's studies and the ongoing development of gender scholarship, and to present what I believe to be the most intellectually fruitful and compelling conception of that relationship. Though there are other valid considerations which lead one to embrace a program of men's studies, some of which I discuss below, such as a need to motivate men towards feminist political change, these considerations are not my primary concern here. Neither shall I be concerned with questions of pedagogy, of how to structure new courses which communicate new gender perspectives and information generated by men's studies, though I believe there is an urgent need for innovative curriculum development in this area.' The question I am addressing is strictly that of the theoretical justification, from the perspective of feminist scholarship, of the project of men's studies. The next section of this paper, then, discusses the history of the current usage of the concept of "gender" in women's studies. Following that, I shall analyze what I take the field of men's studies to be, and how it relates to feminist scholarship. Finally, I shall conclude by giving, by way of illustration, just one of many possible examples of future directions for research in men's studies. I would like at this point to qualify the analysis which follows, which is my schematic reconstruction of certain developments in feminist scholarship, in two respects. First, though I believe I am tracing a central and important theme in the development of women's studies, this is not intended as anything like a comprehensive account or analysis of the history of the field. Secondly, though I think the concept of gender has made positive contributions to feminist theory, I also have reservations about certain uses of the concept, as I shall make clear later on. At certain points, the terms of discourse are my own and not necessarily those of the 180

harry brod participants in the dialogue sketched below, yet I believe this account of a particular portion of contemporary intellectual history recognizably captures divergent views of those participants. Traditional scholarship used to speak of "sex differences," where behavioral differences were usually thought of as correlative with innate, biological differences between women and men. Against this background, the women's studies scholarship which grew out of the contemporary feminist movement insisted that the biological distinction male/female was not equivalent to nor necessarily correlative with the social distinction masculine/feminine, and popularized the category of "sex roles" to speak of social/cultural differences between women and men. Most were willing to draw the clear political implications of this framework that if sex roles were learned or acquired, rather than innate and given, then they could also be unlearned and changed. Over time, however, problems emerged with the "sex role" framework. As the sex role hypothesis became radicalized, as more and more facets of femininity and masculinity came to be conceptualized as merely "roles," any remainingnotion of a core, natural self disappeared amidst the multiplicity of social roles we were all playing. What emerged from this development was what philosophers refer to as a non-essentialist theory of the self, in which the "self" is merely a convenient label for discrete phenomena we consider as part of a single whole, phenomena not actually intrinsically related to one another. This consequence proved unsatisfactory to numerous people, in part for the same reasons that many have historically rejected non-essentialist metaphysics: it simply seems to violate deeply held beliefs about the existence of underlying essences which we seem to have experience or knowledge of, beliefs we are usually loathe to surrender.2Aside from this sort of general objection to any non-essentialist theory, the loss of a posited essential self posed a particularproblem for feminist theory, as we shall see in a moment. In addition, it should be noted that the non-essentialist theory of the self was always consistently rejected from one specific feminist quarter. There was always a strain of radical feminist theory which held that observed differences between women and men were rooted in different inherent essences, and some held further that these differences should be celebrated, not minimized or negated. Those who followed this school of thought could never fully accept all the talk of "roles" which could and should simply be "unlearned." Of major concern here is that the problems with the non-essentialist theory of the self which emerges from the radicalization of the sex role hypothesis cuts deeply into mainstream feminist thought. It drives a wedge between the political and academic arms of the movement, and 181

hypatla it is here that the problem is most serious. Much of the most important work in women's studies-what one might call the empirical social theory of women's studies, work done under the rubrics of sociology, psychology, philosophy, literary criticism, history, political science, anthropology, etc.-was guided by the sex role framework. Yet, while this empirical social theory provided ever more support for the nonessentialist theory of the self, exposing more and more of the social determinants of femininity and masculinity, much of the normative political theory of feminism was cast in terms of an essentialist theory of the self. Feminism's normative critique of male dominated thought and action railed against the stifling and repressionof women's authentic selves. What was wrong with sexism was that it thwarted the development of capacities of women's essential "real" or "true" selves. The concepts of "authenticity" and "self-realization" were invoked. Yet all of this, while providing much of the motive force behind feminist studies, was incompatible with the commonly assumed framework of those studies. The conflict between feminism's critique of sexism generated by its empirical social theory, based on the non-essentialist sex role model, and its critique of sexism generated by its normative political theory, based on the essentialist self-development model, can perhaps be elucidated by seeing that they invoke two entirely different standards of justice. On the non-essentialist account, since there is no natural woman's self, there is no core self which has been wronged or repressed. The ethical objections to sexism are solely those involving violations of principles of distributivejustice. That is to say, in a sexist social system, benefits and drawbacks are unequally attached to roles which are unfairly distributed between men and women, to the overall disadvantage of women. On this model, the goal of feminism is a fair distribution of roles, with their accompanying debits and credits. On the essentialist account, however, even if such a role distribution is equitable, it may still be unjust according to a non-distributive notion of justice, if essential capabilites of the self are still left unrealized. The door is open to a critique of sex roles as inherently dehumanizing, even if equally so to all. Those familiar with feminist political theory will recognize here familiar strains of liberal vs. radical feminist debates, as well as echoes of long-running nature/nurture debates. A preference for the nonessentialist model in academia should not be surprising. Women's studies scholars trying to work their way into the establishment would quite naturally adopt the framework of that establishment, including the dominant liberal distributive notions of justice, captured by John Rawls' concept of "justice as fairness" (1971). The successful 182

harry brod arguments for women's studies stressed the unequal distribution of knowledge, resulting in a distorted worldview, not a thwarting of women's intellectual development, resulting in a stupefaction of women. Indeed, if the goal was to validate women's scholarship, the latter would have been self-defeating. Notwithstanding the contrasts drawn above, it is of course possible to construct liberal essentialist or radical non-essentialist doctrines. A variant of the former, for example, might hold that the essence of the self lies precisely in one or more of the various social personas distributed by the social order rather than in any deeper level of personality behind these personas. Or a variant of the latter might hold that the unrealized capacities of the self claimed on another account as the essence of the self are just additional properties of certain selves. While recognizing that these distinctions cannot be collapsed into one another, there are nonetheless conceptual affinities between nonessentialist and liberal strains of thought, on the one hand, and essentialist and radical strains, on the other, and one is more likely to find these categories clustered together than not. Thus, following the analysis presented earlier, a gap emerges between the mainstream academic and the radical political arms of feminism, a gap unacceptable to those on either side, who are accustomed to thinking of women's studies and feminist politics as different aspects of a single movement. Part of the reason why this gap has not emerged more sharply than it has is because the slogan that "the personal is political," expressing a fundamental feminist insight about the interpenetration of social and psychological categories, has often been understood loosely enough to allow for a certain equivocation between "oppression" as a political concept, dealing with power imbalances between social groups, and "repression" as a psychological concept, dealing with psychological imbalances between aspects of the self. While much of the most deeply felt moral force of feminism centered on the latter, much of its analytical strength derived from the former. Statements about realized essences, while capable of inspiring grandiose political programs, are notoriously difficult to substantiate, while statements about role allocations lend themselves more readily to empirical verification than to inspirational exhortation. Feminism is of course not the only influential modern school of thought faced with this sort of dichotomy. Analogous problems seem endemic to systematic social theory, whether seen in the conflicts between Marxism as empirical science of social change, which develops a theory of exploitation aimed at establishing a fairer distribution of goods and powers, and Marxism as revolutionary dialectics of liberation, which develops a theory of alienation aimed at achieving the full realization of human species183

hypatla essence, or in the conflicts between Freudianism as scientific social psychology, which develops a therapeutic practice, and Freudianism as hermeneutic meta-psychology, which develops a radical critique of the social order. Though such tensions between divergent strains of a single worldview are not necessarily fatal to the theory, and indeed often add to the vigor of any worldview, they do requiresome resolution, however incomplete or tentative such a resolution may be. Without some such overarchingunity, divergentstrainsthreatento separateinto antagonistic schools. Those attemptingto re-createa unified theory of feminist studies consequently found themselves strandedbetween Scylla and Charybdis.The sex role model seemed too fragmenting, yet the most common essentialist framework available entailed a return to a naturalistic biologism most were unwilling to accept. And while non-essentialism had the political overtones unacceptable to some already discussed, essentialism carries with it its own politicial handicaps. To many, essentialist doctrines are inherently monolithic because of their claim to knowledge of a single human essence. They consequently seem to invite an authoritarian elitism anathema to many whose political allegiance is to pluralist democratic structures. Furthermore, sex role theory is usually more explicit in stating that its model operates on the level of sociological generalization, not necessarily instantiated in every individual, thus avoiding the essentialist implication that those who do not fit the model are abnormal or deviant by violating their own nature. It is at this juncture that the concept of gender came to prominence. To speak of gender, all came to agree, was to speak of a cultural formation on a biological base, without any prior commitment as to how much was base and how much was cultural formation.3 The nomenclature of gender carries several advantages. At the most superficial level, by avoiding an a priori stance on nature/nurture, essentialist/non-essentialist questions, research may be carried on without raising suspicions that prior political allegiances are skewing results. Hence, to speak of gender, rather than of roles or essences, appears more academically respectable. I would add that a particular development in feminist theory also contributed to the rising popularity of the terminology of gender in this period, namely the growth of interest in psychoanalytic feminism, with all of its talk of the formation of gender identity and engenderment. The growth of psychoanalytic feminism in this period is not coincidental. For many, it provided precisely the kind of non-biological essentialism they hoped might solve the theoretical difficulties I have just outlined. There are further reasons for the new terminology of gender, and it is here that trends favoring the congruent development of women's 184

harry brod and men's studies emerge. In her keynote address at the most recent National Women's Studies Association conference, Catharine Stimpson raised the question "What is the real subject in Women's Studies? Is it women's experience ... or gender as a form of social organization?" In an earlier draft of this paper, I went further than simply answering Stimpson's question by affirming that the subject of women's studies is gender. I argued that it followed from this expanded perspectivethat the field of women's studies should be reconceptualized as gender studies, with men's studies a component of this new gender studies. I now think that this is an error, and I think the difference between my previous and present positions is significant. I now believe my previous position to have been correct in its context, but I now view that context as being too limited. I believe "gender studies" would be appropriate in a strictly academic context, because I believe it does more precisely indicate what women's studies is ultimately about. But the academic framework is not the most encompassing or fundamental one. Academic work too takes place in a political context, and the sacrifice of the connection to the women's movement implicit in the concept of women's studies is too high a price to pay for scholarly precision. I shall be saying more about men's studies shortly, but let me say at this point that I believe the claim of women's and men's studies must be that they study gender, but from the perspectives of valid conceptualizations of women's and men's experiences, respectively. At this point, it seems to me that the terminology of "gender studies" would at best be acceptable as an additional overarching concept for the general field of studies delineated by both women's and men's studies conjointly, but that it is not acceptable as a replacement for the concept of "women's studies." To prevent "gender studies" being misinterpreted as the latter rather than the former, I prefer to speak of "gender scholarship" rather than "gender studies," because I believe this is more likely to be understood as an alternative description of research in women's and men's studies, rather than as a renaming of women's studies, a name whose recognition women have fought too hard to establish to be so lightly surrendered. To continue with the convergence of men's, women's, and gender scholarship, whether one believes one is speaking of human nature or of social roles, the basic claim in the study of gender is that the concept of gender must be a fundamental category of all social research, fundamental in the literal sense of "foundational" or "grounding." By focusing on gender as a form of social organization, to use Stimpson's phrase, women's studies insists that its subject is not simply compensatory or additive knowledge about women, but a fundamental revision of all canons of knowledge to take account of a genderized world, 185

hypatla eventhose areasof knowledgepreviouslythoughtto be genderneutral. As SandraHardingand MerillB. Hintikkaput it recentlyin their introductionto a volumeof new essaysdedicatedto expandingfeminist perspectives: We cannot understandwomen and their lives by adding facts about them to bodies of knowledgewhich take men, their lives, and their beliefs as the human norm. Furthermore,it is now evident that if women's lives cannot be understood within the inherited inquiry frameworks, then neither can men's lives. The attempts to add understandingsof women to our knowledgeof natureand social life haveled to the realizationthatthereis preciouslittlereliableknowledge to whichto add them. A more fundamentalprojectnow confrontsus. We must root out sexist distortionsand perversionsin epistemology, metaphysics,methodologyandthe philosophyof science-in the "hard core" of abstractreasoningthought most immuneto infiltrationby social values. (1983, ix.) It is this expandedencompassingvision of women's studies, as the study of gender, requiringa re-visionof the entirecurriculumrather than simple the addition of insightsabout women, which bringsthe need for men'sstudiesinto focus. But not merelyin the simplisticsense that somethingwhichclaimsto be abouteverythingmustbe aboutmen too. Men'sstudiesis not merelyan additiveto women'sstudiesto create genderscholarship,no morethanwomen'sstudiesis simplyan additive to the traditionalcurriculum.Rather, the project of genderscholarship mandatesa particularconceptionof men's studies. This conception is groundedin an increasinglysustainedunderstandingand an increasinglyemergingconviction. The understandingis that in falsely generalizingman as "male" to man as "human"we have, to our great loss, obliteratedthe specificitiesof both women'sand men'slives. The of convictionis that the only way to depowerthe pseudo-universality generic "man" is to study man as particular,ratherthan as pseudogeneric. Whether one prefers a relatively benign explanation of masculineresistanceto studyingthe specifics of the male role, along the lines of the simply myopia attributedto male scholarsin Robert Brannon'sreferenceto "an old folk saying that 'the fish will be the last to discoverthe ocean' " (1976, 2) becausethey are themselvesso totallyimmersedin it, or a morecynicalattributionof motivation,taking account of the vested interestof the privilegedin obscuringthe sourceof theirprivileges,the fact remainsthat suchmen'sstudieshave been sorelylacking.As both Brannonand Peter Filenenote, libraries simplyhave not listedthe categories"male" or "masculinity."(Brannon 1976, 1; Filene 1976, 220.) The purposeof men's studiesis to fill 186

harry brod this gap. I take this kind of men's studies to be the only remedy for a situation in which, by making man the assumed norm, woman always remains the "other," the problem to be solved, the intrusive datum to be explained, a situation which women's studies alone may not be sufficient to rectify. No scholarly tour de force in answering "the woman question" can ever eliminate this problematic status of women which first makes women appear questionable unless the status of men is equally brought into question. Thus the study of men as particular, i.e. men's studies, is a necessary component of the feminist claim to universal, and not merely compensatory, truth. To some extent, the move to an emphasis on gender is part of a process of self-definition which dates to the beginnings of women's studies. It is part of the systematization which occurs whenever a derivative research program becomes an autonomous discipline. Insofar as this is the case, questions about the programmatic implications of feminism's total vision are not entirely new,. For example, in a very germane argument that women's studies should become an autonomous discipline, Sandra Coyner persuasively argues against women's studies as merely an "interdisciplinary"approach to the "problem" of women: ... the "problem" approach underestimates the importance of Women's Studies. Women's Studies is not just a collaboration. It is-or can be, if we explain it right-a completely new [way] of viewing humanity. Interdisciplinary programs do not normally ask the parent disciplines to be revolutionized by their new insights and restructuring of theory and method: they apply theory and method, to solve "problems." We may have stumbled on our treasure unaware. We started with concern about sexism. But what we have discovered in women's culture, and what we suspect about the way we will see knowledge itself when we look through our women's eyes, is certainly far bigger than what we expected and far more dramatic. (1980, 26) What is particularly new in the current discussion is the additional emphasis on the study of men as men in the new stage of gender scholarship, now that there seems to be general agreementthat the stage of initial data accumulation on women has been passed or is at least well under way, and a new level of study of the gender dichotomy itself has been reached. Consider the following programmatic calls for new research in specific disciplines: in Anthropology: 187

hypatla Women are seen as a problemrequiringsome kind of special attention, while men are more or less taken for granted,or at least not focused upon in a comparably explicitway. But would it not be betterto view men as being just as problematicas women? To insist that we need morestudiesof men as men-that is, studiesbased not on an uncriticalassumptionthatwhatmendo is more interestingor importantthanwhatwomendo, but studies carriedout with a particularfocus on gender?(Shapiro 1981, 122) in History: Addressing the Berkshire Conference on Women's History in 1975, Natalie Zemon Davis, a historian of medieval and early modern Europe, urged that "we should now be interestedin the historyof both women and men. We shouldnot be workingon the subjectedsex any more than a historianof class can focus exclusively on peasants.Our goal is to understandthe significance of the sexes, of gender groups in the historicalpast." (Pleck and Pleck 1980, 3-4) in Sociology: Most workshop ethnographies-and other studies of occupations-are normallyabout men anywayand the re-examinationof these studiesin the light of notions of gender and masculinity should prove to be an illuminating,if difficulttask. Thustakinggenderinto account is 'taking men into account' and not treating them-by ignoringthe questionof gender-as the normal subjectsof research.(Morgan 1981, 95) in LiteraryCriticism: Becausemasculinityis now describedas an historicalconstruct imposed upon a biological given, critics cannot discuss knowledgeablythe concept of a male hero in a of the definition literarytext withoutsome understanding of masculinity in its culture .... Moreover, it would be

rashfor the literarycriticto attemptto describea male's developmentin a work of fiction or biographywritten in our own culture without some knowledge of the underlyingrhythmsof Americanmen'slivesdescribedby social scientists .... Such an examinationwill require 188

harry brod scholars to reopen the question of just how much we really know about men and to introduce into the curriculum new or revised knowledge about men's history, men's psychology, men's images in literature and the arts-in short, an array of new or modified men's studies. (August 1982, 585) If the arguments I have advanced are valid, it then follows that we have reached the stage of a truly historic reversal. In the initial stages of establishing the field of women's studies, where the agenda was primarily to establish the legitimacy of the concentrated study of women on their own terms, arguments that one needed to turn one's attention to men as well seemed inappropriately accommodationist, as if one feared that the project would not be deemed sufficiently meritorious unless it also included men. In this context, radical and militant feminism stood for exclusive attention to women. Today, however, in the context of gender scholarship, the options have expanded. They are no longer simply restrictedto autonomous exclusivity for women vs. assimilation under the male norm, nor is the project of mainstreaming women's studies into a revised general curriculum the only kind of "mainstreaming" now possible to envisage. As noted earlier, women's studies does not simply add knowledge on to existing frameworks, it sees the world through the prism of its own categories. Accordingly, the most far-reaching of today's tasks is not mainstreaming women's studies into the established curriculum, but what may be thought of as mainstreaming the established curriculum through the comprehensive vision of gender scholarship. Today, then, the most radical potential for women's studies expressly calls for attention to men, though of a radicallydifferent sort from traditional male-oriented scholarship, since this new men's studies would be constructed on the basis of the feminist critique of traditional scholarship. For these reasons, I believe that fears that the success of feminism would make women's studies courses unnecessary are unfounded.5 Given the social roots and historical components of all knowledge, the categories of gender will remain essential to the general constitution of knowledge, even if sexism were entirely eliminated. These are the reasons for my earlier assertion that the deepest level of fulfillment of the project of feminist scholarship requires the development of men's studies. In seeing men's studies as a continuous development with women's studies, I part company with those like Eugene August in "'Modern Men,' or, Men's Studies in the 80's," (1982) who sees the emergence of men's studies as rectifying some previous deficiency in feminist theory. Again, men's studies is an 189

hypatla extension of, not a corrective for, women's studies. It is the achievements, not the shortcomings, of women's studies which have allowed for the emergence of the new men's studies. It will be helpful to contrast various approaches to men's studies because salient differences emerge when the feminist approach to men's studies delineated here is compared to other, non-feminist approaches to men's studies. Though men's studies is a young field, there are many portents for its rapid growth. It is therefore essential that at this early stage the implications of different approaches to men's studies be understood and evaluated, to prevent its developing in directions inimical to feminism. To begin with, August's stance is typical of one strain of thought developed by "men's rights" political groups, not to be confused with anti-sexist or pro-feminist men's groups. (For many of the former writings of Herb Goldberg, primarily The Hazards of Being Male: Surviving the Myth of Masculine Privilege (1977), often serve as primary point of reference.) It exemplifies what I call the Argument from Fairness. Feminist theory is here castigated for unfairly not paying as much attention to male role restrictions, held to be as oppressive as those women labor under. This approach misses the point that what is needed from men's studies is a qualitatively different study of men, of the kind sketched here, not quantitatively more study of men. To this line of reasoning, the traditional feminist response that the traditional curriculum is already a men's studies program, alluded to at the beginning of this paper, remains appropriate. Furthermore, principles of fairness cannot be selectively invoked. Unless and until these same men's studies partisans raise their voices against the exclusion of women from the rest of the academy as loud as they decry the exclusion of men from women's studies, their protestations must be viewed skeptically. Another set of rationales for men's studies constitute what I call the Therapeutic Argument for men's studies. This has both pragmatic and principled versions. The pragmatic version argues that unless some attention is paid to men, male colleagues and students will resist allowing women's studies programs to continue. Hence male feelings of being left out need to be assuaged. I do not begrudge acceptance of this line of argument to those who out of practical necessity are forced to give weight to these considerations. However, because the criterion for success of a men's studies component generated by such considerations would logically be the degree to which men feel satisfied by what is being said, feelings for the most part correlative with established frames of reference rather than with new perspectives yet to be discovered, this line of argument can provide no coherent, substantive guidance 190

harry brod regarding the content of men's studies, and is therefore inadequate. The principled version of the therapeutic argument is more plausible. Starting from documentation of the strains and doubts many men feel in the current period of challenges to traditional norms of masculinity from various directions, such as the women's, gay, and ethnic or racial liberation movements, as well as the loss of many traditional workrelated sources of masculinity validation, this position argues that men too need new role models, and that lasting social change is impossible without the cooperation of at least some men. (Goodman 1981, 104-105.) Men's studies is then championed as an important source of new perspectives for these men. (Bliss 1980; Dubbert 1979, 1-12.) While the latter therapeutic argument is correct as far as it goes, I find it insufficient as a justification for men's studies. An analogy drawn from another therapeutic context may help clarify my reason here. Many women, at a certain stage of their developing selfconsciousness, are often counseled against giving vent to their feelings of anger against men on the grounds that it will only hurt men's feelings and alienate them. This too is correct as a prediction of the likely effect of this course of action on men, but it is insufficient as a guide to a woman's actions precisely because its exclusive point of reference is men's feelings. A sounder reason not to display counterproductive anger is not because it will hurt men's feelings, but because counterproductive speech of this kind is speech still made from the stance of the victim, of the powerless. Effective communication speaks with assured confidence in the validity and efficaciousness of its message. Thus to the extent any advice at all is called for, women should be counseled to move past the stage of anger precisely to the extent that this enhances the women's self-image, and she should be allowed to retain what may in fact be not the best communicative mode precisely to the extent necessary to prevent relapse into an earlier stage of low self-esteem, including repressed anger. Analogously, I consider therapeutic arguments for men's studies insufficient precisely because they too take as their reference point the needs of men, rather than the needs of women's studies. By way of contrast, I have tried to present an argument for men's studies based on the expansive possibilities of women's studies, arguing that expansion in this direction fulfills important potentialities. That it also has the positive effect for men cited, as I believe it does, is all to the good, and importantly so, but it is not the fundamental reason why women's studies should accept and support the new field of men's studies. Given fears about men "taking over" women's studies which my arguments may raise, I should perhaps clarify the extent to which I 191

hypatla advocate the complementing of women's studies by men's studies. It does not follow from my analysis that it behooves males in positions of authority or influence to insist that women's studies programs and departments now add men's studies components. I draw a distinction here analogous to that drawn by Alison Jaggar in "Abortion and a Woman's Right to Decide" (1973, 347-360). While the question of the relation between women's and men's studies is a philosophical question to which I have given my answer above, the question of who is to decide under what conditions this answer shall be implemented is a political question whose answer has a different locus. Despite my advocacy of the position set forth here, the decision-making authority on whether to incorporate men's studies components into women's studies programs must remain with women in women's studies departments and programs. The steps I advocate should be taken precisely to the extent that these women decide it is best to do so. While I cannot here even begin a survey of current work in the field of men's studies, I would feel remiss in an article of this nature not to direct readers looking for an exemplary model to Joseph Pleck's extremely important re-evaluation of the dominant psychological paradigm, The Myth of Masculinity (1981), which includes a list of "Resources for Male Role Studies" and a "Bibliography."6 I would like to close by giving an example of the kind of research men's studies would produce by looking at some possibilities from my own field of political philosophy. I believe that the history of political theory contains an as yet insufficiently analyzed hidden history of masculinity. Much of what has passed for descriptiveaccounts of human nature can be more adequately understood as prescriptive accounts of historically specific paradigms of masculinity, including such scions of the masculine heritage as the warrior-scholarepitomized as Plato's Philosopher-Ruler, the aristocrat who appears as Machiavelli's Prince, the bourgeois male hypostatized as Hobbes' natural man, and the homme-citoyen given the name of Rousseau's Emile. David Morgan speculates along these lines when he writes ... it is possible to see Weber's Protestant Ethic as a study of masculinity, not a universal, biologically fixed notion of masculinity but one that was intimately bound up with the developing social formation of capitalism. The main character traits of the ideal-typical puritanself-control, discipline, rationality, methodicalness-are traits which would probably be defined as 'masculine' by many people, including not a few social psychologists, 192

harry brod In this study, as in many in contemporary society.... other studies, men were there all the time but we did not see them because we imagined that we were looking at mankind [sic]. (1981, 93) Men's studies perspectives are also needed to elucidate neglected areas of contemporary social and political philosophy. For example, finely nuanced analyses of male concepts of social identity are essential to any attempts to more deeply pursue Carol Gilligan's suggestions (1982) that much of our moral discourse which centers on concepts of individual rights rather than interpersonal responsibilities derives from a particular kind of male bias and self-understanding, or Evelyn Fox Keller's suggestions (1985) that our fundamental conceptions of scientific rationality are similarly derived. Furthermore, to take an area of current legislative controversy, even assuming feminist perspectives on questions of women's reproductive rights there remain many questions to be answered in the largely uncharted terrain of male reproductive rights, such as putative men's rights to abortion counseling, spousal notification of abortion decisions, adoptive rights of unwed fathers, rights and responsibilitiesof sperm donors, and health and safety rights of male workers in areas where protective labor legislation does protect some women's rights. To give one final example, I have argued elsewhere that one reason controversiesabout pornography and censorship have split usually allied civil libertariansfrom feminist advocates is that the classical civil liberties position on pornography assumes a classically male, dualistic, negative attitude towards the question of embodiment as pre-eminently experienced in sexuality, an attitude challenged by many feminists' more wholistic stance towards mind/body questions, and that consequently much discussion about pornography between feminists and civil libertarians is often at cross-purposes, with feminists looking at how sexuality is portrayed, and civil libertarians focused on the substantially narrower question of whether sexuality is portrayed (Brod 1984, 47-63). Men's studies opens up many new possibilities. It has been my primary intention here simply to provide a context for the unfolding of these possibilities.7 In 1949 in the Introduction to The Second Sex, Simone de Beauvoir wrote, "A man would never get the notion of writing a book on the peculiar situation of the human male" (1974, xvii).8 It is one of the foremost achievementsof feminist scholarshipthat this is no longer true.

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notes 1. My colleaguesin the Programfor the Studyof Womenand Men in Societyat the Universityof SouthernCaliforniahavebeenveryfruitfullyengagedin this project. I would like to take this opportunityto thankthem for theirsupportin the writingof this paper. 2. For a recentstatementof this line of criticismof sex roletheory,see Stanleyand Wise (1983, 97-105). 3. Thereis an older usage of "gender"in the biologicalscienceswhereit means whatis hereinreferredto as biologicalsex. My use of the concept,however,is in accord with its prevailingcurrentusage in the social sciencesand humanities. 4. Thoughin the analysiswhichfollows I classifyotherelementsof this articleas non-feminist,I believethese points are well taken. 5. This positionis taken by JanetSaltzmanChafetz(1974, xi). Interestingly,she uses the term "gender"in its older biologicalsense. 6. Seealso theotherworkscitedhere,especiallyPleckandPleck(1980),whichtraces the developmentof men'shistory,and Davidand Brannon'swidelyusedanthologyon contemporarymale sex roles (Brannon1976).Two college level textbookswhichprovide useful presentationsof currentmen's studiesperspectivesare Doyle (1983) and Franklin(1984). 7. Theconceptionof men'sstudiesdelineatedhereis furtherdevelopedin TheMaking of Masculinities:TheNew Men's Studies(Brod 1987),and severalarticlesin a special issue on men's studiesof the Journalof the NationalAssociationfor WomenDeans, Administrators,and CounselorsincludingBrod (1986). 8. I was remindedof this by MarkGerzon'suse of it as the introductoryepigraph to his A Choice of Heroes: The ChangingFaces of AmericanManhood(1982, 1).

references August, Eugene R. 1982. 'Modern men,' or, men's studies in the 80's. College English 44 (6). Beauvoir, Simone de. 1974. The second sex. Trans. and ed. H.M. Parshley. New York: Vintage. (orig. 1952. N.Y.: Knopf.) Bliss, Shepherd. 1980. Why graduate programs in psychology should offer courses on men. Unpublished manuscript. Bradshaw, Jan. 1982. Now what are they up to? Men in the 'men's movement'! In On the problem of men: Two feminist conferences, eds. Scarlet Friedman and Elizabeth Sarah. London: The Women's Press. Brannon, Robert. 1976. The male sex role: Our culture's blueprint of manhood, and what it's done for us lately. In The forty-nine percent majority: The male sex role, eds. Deborah S. David and Robert Brannon. Reading, Mass.: Addison-Wesley. Brod, Harry. 1984. Eros thanatized: Pornography and male sexuality." Humanities in Society 7 (1 and 2). 1986. Why is this 'men's studies' different from all other 'men's ---. studies'? Journal of the National Association for Women Deans, Administrators, and Counselors 49 (4). 194

harry brod 1987. Introduction, and the case for men's studies. In The making of masculinities: The new men's studies, ed. Harry Brod. Boston: Allen & Unwin. Chafetz, Janet Saltzman. 1974. Masculine/feminine or human? Itasca, Ill.: F.E. Peacock. Coyner, Sandra. 1980. Women's studies as an academic discipline: Why and how to do it. In Theories of women's studies, eds. Gloria Bowles and Renate Duelli-Klein. Berkeley: Women's Studies, University of Californa, Berkeley. Doyle, James A. 1983. The male experience. Dubuque, Iowa: Wm. C. Brown. Dubbert, Joe L. 1979. A man's place: Masculinity in transition. Englewood Cliffs, N.J.: Prentice-Hall. Filene, Peter Gabriel. 1976. Him/her/self: Sex roles in modern America. New York: New American Library. Franklin, Clyde W. II. 1984. The changing definition of masculinity. New York: Plenum. Gerzon, Mark. 1982. A choice of heroes: The changing faces of American manhood. Boston: Houghton Mifflin. Gilligan, Carol. 1982. In a different voice. Cambridge: Harvard University Press. Goldberg, Herb. 1977. The hazards of being male: Surviving the myth of masculine privilege. New York: New American Library Signet. Goodman, Ellen. 1981. The communication gap. In At large. New York: Summit. Harding, Sandra and Merill B. Hintikka. 1983. Introduction. Discovering reality: Feminist perspectives on epistemology, metaphysics, methodology and philosophy of science. Dordrecht: D. Reidel. Jaggar, Alison. 1973-1974. Abortion and a woman's right to decide. The Philosophical Forum 1 (2). Keller, Evelyn Fox. 1985. Reflections on gender and science. New Haven: Yale University Press. Morgan, David. 1981. Men, masculinity, and the process of sociological enquiry. In Doing feminist research, ed. Helen Roberts. London: Routledge & Kegan Paul. Pleck, Elizabeth H. and Joseph H. Pleck. 1980. The American man. Englewood Cliffs, N.J.: Prentice-Hall. Pleck, Joseph H. 1981. The myth of masculinity. Cambridge: MIT. Rawls, John. 1971. A theory of justice. Cambridge: Harvard University Press. --r-.

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hypatla Shapiro, Judith. 1981. Anthropology and the study of gender. In A feminist perspective in the academy: The difference it makes, eds. Elizabeth Langland and Walter Gove. Chicago: University of Chicago Press. Spender, Dale. 1981. Men's studies modified: The impact offeminism on the academic disciplines. Oxford: Pergamon. Stanley, Liz and Sue Wise. 1983. Breaking out: Feminist consciousness and feminist research. London: Routledge & Kegan Paul.

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notes on contributors Gale S. Baker received her B.A. in philosophy from California State University,Fullertonin 1985. She is currentlya student at UCLA's school of law. Sharon Bishop receivedher BA in 1961 from MacalesterCollege and her Ph.D. in 1966 from Harvard University. She is currently professor of philosophy at California State University, Los Angeles, where her areas of special interest include ethics, gender and philosophical psychology. HarryBrod's TheMaking of Masculinities:TheNew Men's Studies(Allen & Unwin, 1987) is a collection of essays by leading men's studies scholars. He recently edited an issue on men's studies of the Journal of the National Association for Women Deans, Administrators, and Counselors, and an issue on Jewishness and Masculinity of Changing Men: Issues in Gender, Sex and Politics. He has published articles on men's studies, Hegel, and critical thinking. He is national spokesperson of the National Organizationfor ChangingMen, and currentlyholds a joint appointment as Assistant Professor in the Department of Philosophy, and Program for the Study of Women and Men in Society at the Universityof Southern California. Nancy Fraser teaches philosophy, comparative literature and women's studies at NorthwesternUniversity. Since the 1960's, she has been an activist in several oppositional social movements. Her book, Unruly Practices: Power, Discourse and Genderin ContemporarySocial Philosophy, is forthcoming from The University of Minnesota and Polity Presses. Paul Green graduated from Biola College in 1982. He spent two years studyingphilosophy at CaliforniaState University,Fullertonbefore beginning graduate work at Columbia University. ElizabethJaneway is the author of fourteen books, plus the forthcoming Improper Behavior (William Morrow and Co., 1987). She is past president of the Authors Guild and has served as a trustee at BarnardCollege and on the editorial advisory board of Signs. She is currentlyon the New York State Council for the Humanities and the Board of the NOW Legal Defense and Education Fund. Linda J. Kriegeris an employment law attorney serving as Of Counsel to the Employment Law Center, a project of the Legal Aid Society of San Francisco. She received her A.B. from Stanford University and her J.D. from New York University in 1978. She representedamici curiae and real party in interest Lillian Garland respectively in appellate proceedings in Miller-Wohl v. Commissioner of Labor and Industry and California Federal v. Guerra. She is also currently studying theology at Pacific School of Religion in Berkeley, California. 197

hypatla Sheila Ruth is Professor of philosophy and Graduate Advisor in Women's Studies at Southern Illinois University at Edwardsville. She is the author of Issues in Feminism: A First Course in Women's Studies (Houghton Mifflin, 1980) and is currentlyworking on a book in feminist spirituality and patriarchal religion from which this essay is taken. Betty C. Safford is Associate Professor of philosophy at California State University, Fullerton. She teaches philosophy, logic, and critical thinking, as well as Introduction to Women's Studies and Philosophy of Feminism. She recently was appointed Coordinator of the Women's Studies Minor Progam at California State University, Fullerton. Marjorie Weinzweig, formerly professor of philosophy at California State University at Fullerton, is an attorney with the California Department of IndustrialRelations. She is co-editor of Philosophy and Women and author of various articles in phenomenology, theory of knowledge, feminist topics in philosophy, and proof of discriminatory intent. Her present interests in law include labor relations, employment discrimination, and constitutional law of equal protection and due process. She graduated from Stanford Law School in 1981 at the age of 46. Her most interesting cases include a school desegregation suit against a Northern California school district, work on the litigation regarding California's pregnancy leave requirement,and a sexual harrassmentsuit against a Bakersfield car dealer. She is currently serving on a California State Bar Labor Law Section committee on comparable worth and on the Labor Law and Individual Rights Sections of the Los Angeles County Bar Association. Terry Winant is Assistant Professor of philosophy at the University She works in phenomenology and in of Wisconsin-Madison. philosophy of psychology. She is centrally concerned with problems of "standpoint," and is currentlywriting a book evaluating Franz Brentano's claim to have adopted an "empirical standpoint." Elizabeth Wolgast is a graduate of Cornell University (B.A., M.A.) and University of Washington (Ph.D.) and currentlyteaches at California State University, Hayward. She has also taught at University of California, Davis and Dartmouth College and will teach at West Point in fall 1987. She has held fellowships from the A.A.U.W., A.C.L.S. and N.E.H. and was Visiting Fellow at Girton College in Spring 1982. Besides a number of philosophical articles, she is author of Paradoxes of Knowledge (Cornell University Press) and Equality and the Rights of Women (Cornell University Press), and has recently finished a manuscript, The Grammar of Justice.

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announcements Society for Women in Philosophy: Pacific SWIP: Executive Secretary Rita Manning, UC San Jose State; San Jose, CA 95192. Treasurer Ruth Doell, San Francisco State University, Dept. of Biological Sciences, 1600 Holloway Ave., San Francisco, CA 94132. Midwest SWIP; Executive Secretary Nancy Skeen, University of South Dakota, Dept. of Philosophy, Vermillion, SD 57069. Treasurer Carol Van Kirk, Ohio University, Dept. of Philosophy, 310 Gordy Hall, Athens, OH 45701. Eastern SWIP: Executive SecretaryLibby Potter, Hamilton College, Dept. of Philosophy, Clinton, NY 13323. Treasurer Jana Sawicki, University of Maine, Dept. of Philosophy, Orono, ME 04469. The SWIP Newsletter is mailed to SWIP members twice a year, in early February and mid September. Abstracts from any papers given at SWIP meetings, and any feminist philosophy papers given at other conferences are always welcome. Send abstracts and other announcements and items of information to: Marilyn Friedman, SWIP Newsletter Editor, Philosophy Department, Bowling Green State University, Bowling Green, OH 43403. Deadlines are: August 1 for the September issue, and January 1 for the February issue. Les Cahiers du Grif, a quarterly review of research and information in the problematic of feminism, announce a special issue on Hannah Arendt, Spring 1986. Subscriptions are available for 185 French Francs from: Les Cahiers du Grif, Rue Blanche 29, 1050 Bruxelles, Belgium. Reproductive Laws for the 1990's, a project of Women's Rights Litigation Clinic and the Institute for Research on Women at Rutgers University, is developing strategies for dealing with new reproductive technologies and current laws guaranteeing reproductive choice in light of reported scientific advances. Six areas of particular focus for the project are: time limits on abortion; prenatal screening; fetus as patient; reproduction involving third parties; reproductive hazards in the workplace; and interference with reproductive choice. Two goals of the project are to develop an information bank of ongoing research, and to stimulate research on topics in these areas. To obtain a copy of the Information Bank Reporting Form, and the Research Agenda, contact: Dr. Sherrill Cohen, Reproductive Laws in the 1990's Project, c/o Institute for Research on Women, Douglass College, New Brunswick, NJ 08903.

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hypatla The Directory of Women in Philosophy will publish a new edition in the Fall of 1987. Registration is invited from all women who have completed some graduate work in philosophy, regardless of present employment status or academic affiliation. Those wishing to be included in the Directory should provide the following information: name, address, area code, and telephone number (specify home or office); no more than four fields of specialization; last degree, date, and institution; dissertation and publications (no more than six entries); present position and institution; and dossier source. Deadline for registration is June 1, 1987. Registration information may be sent to Jean Rumsey, Department of Philosophy, University of Wisconsin/Stevens Point, Stevens Point, WI 55481. Feminism and Philosophy Newsletter. The American Philosophical Association is happy to announce plans to publish a newsletter on feminism and philosophy. The Feminism and Philosophy Newsletter will be published under the auspices of the APA Committee on the Status of Women and it is hoped that it will appear two to four times a year. The purpose of the Newsletter is to provide information about recent work in the area of feminist philosophy, listing new publications and providing book reviews. It might include discussions of how to integrate or "mainstream" this material into traditional philosophy courses. It is anticipated that the Newsletter will provide a valuable service both for feminist philosophers and for colleagues whose main interests have not been in the area of feminist philosophy. The Newsletter is also likely to be of interest to scholars outside philosophy. Editor Sought. Applications are invited for the position of Editor for the Feminism and Philosophy Newsletter. The Editor will have primary responsibility for the content of the Newsletter and will have an ex officio seat on the Committee on the Status of Women. Interested applicants should write, explaining their interest and enclosing a curriculum vitae, to Alison M. Jaggar, Chair, Committee on the Status of Women, Department of Philosophy, #374, University of Cincinnati, Cincinnati, OH 45221. Contributions for the Feminism and Philosophy Newsletter are also invited at this time, together with general suggestions about the kind of material readers would like to see included. Please address all correspondence to Alison M. Jaggar at the University of Cincinnati.

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announcements Men's Studies, a special issue of the Journal of the National Association for Women Deans, Administrators, and Counselors, is available from: NAWDAC National Headquarters, Suite 210, 1325 18th Street N.W., Washington, D.C. 20036. Single copies are $7.50. Topics include: men's studies curricula and research, the relationship between men's studies and feminist theory and practice, problems women may face in integrated men's/women's studies courses, and men's studies and gay studies. Affiliated Scholar of the University of Southern California Program for the Study of Women and Men in Society, is an official, non-salaried university appointment for those with appropriate academic qualifications who have scholarly interests in the study of changing sex roles in society and wish to be in residence at USC for a limited period. Applications may be made by sending a vita and a proposal describing the book or other project to be undertaken, the desired length of stay, and the resources of USC and the surrounding area one expects to use. Applications should be made by the middle of the semester prior to the intended residence. (November 15 and March 15). Submit application to: Program for the Study of Women and Men in Society, USC Taper Hall 331M, Los Angeles, CA 90089-4352, Attn: Prof. Walter Williams. Sustaining Institutions. Hypatia announces a Sustaining Institutions program to provide support for Hypatia'spublication of scholarly research in feminist philosophy. Through this program institutions will be able to contribute to the development of research at the intersection of women's studies and philosophy, and to address, as well, a variety of institutional objectives including: curricular enhancement, public service, marketing, and educational equity projects. Sustaining Institutions will contribute a minimum of $200 annually towards the publication of Hypatia. In acknowledgement of their support, the name of each institution will be displayed prominently in each issue of the journal. Each institution will also receive a gift subscription to Hypatia. Few scholarly journals can survive on subscriptions and advertising alone. They must have significant institutional support as well. In these lean times, it is more feasible for a new journal such as Hypatia to seek institutional support from a number of institutions. To participate in the Sustaining Institution program, please contact: Margaret A. Simons, Editor, Hypatia, Southern Illinois University at Edwardsville, Edwardsville, IL 62025-1437.

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hypatla Pergamon Press and the National Women's Studies Association are jointly awarding two graduate scholarships in Women's Studies. The first award is for $1000; the second for $500. Preference will be given to nominees who are NWSA members and special consideration given to students whose research project addresses issues relevant to women of color, Third World Women, class, or feminist practice/analysis in Pre-K through 12 education. Applications deadline is April 30, 1986. For furtherinformation contact Caryn McTighe Musil, NWSA National Coordinator, La Salle University, Philadelphia, PA 19141, phone (215) 951-1700.

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submission guidelines Hypatia solicits papers on all topics in feminist philosophy. We will regularlypublish general issues as well as special issues on a single topic, or comprising the proceedings of a conference in feminist philosophy. All papers should conform to Hypatia style using the Author/Date system of citing references (see the Chicago Manual of Style). Papers should be submitted in duplicate with the author's name on the title page only for the anonymous reviewing process. The Forum, edited by Maria Lugones, will publish short papers (2-3 pages) on a designated topic, in order to further dialogue within feminist philosophy. Papers on the topic Celibacy should be submitted by March 1, 1987 to Maria Lugones, Box Y, Valdez, New Mexico, 87580. The Book Review section will publish reviews of publications in feminist philosophy. To propose publications for review, or to contribute book reviews, query the Book Review Editor: Jeffner Allen, Women's Studies, Eastern Montana College, Billings, Montana, 59101.

Special Issues History of Women in Philosophy, edited by Linda Lopez McAlister. We are seeking papers on any aspect of the history of women in philosophy, from the ancient period to the twentieth century, e.g., feminist analyses of the works of women philosophers; expository, biographical and bibliographical pieces; discussions of ways to "mainstream" the works of women philosophers into history of philosophy curricula; assessments of the contributions of women to philosophy; items for an Archives section. All materials should conform to Hypatia style, and be submitted in duplicate to: Linda Lopez McAlister, Women's Studies Program, University of South Florida, Tampa, FL 33620. Deadline for papers: September 15, 1987. Medical Ethics. We welcome proposals for guest editing an issue on medical ethics. Prospective editors should write explaining their interest, defining a focus for the issue and providing ideas for soliciting papers, and include a curriculum vitae. All materials should be submitted in duplicate to: MargaretA. Simons, Editor, Hypatia, Southern Illinois University at Edwardsville, Edwardsville, IL 62026-1437. Deadline for proposals: June 1, 1987. Papers for general submission and all other correspondence concerning Hypatia should be addressed to: Margaret A. Simons, Editor, Hypatia, Southern Illinois University at Edwardsville, Edwardsville, IL 62026-1437. 203


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Journal of the Organization for Research on Women and Communication of the Western Speech Communication AssociationFeaturing descriptive and empirical studies, book reviews, and syllabi concerning gender and communication deriving from such perspectives as

interpersonalcommunication,small group communication,organizationalcommunication, the mass media, and rhetoric

YEARLYSUBSCRIPTION (Includes membership in the Organization for Research on Women and Communication) $12.00

$8.00 Student Regular $15.00 Institutional

Send check to: Sonja Foss, Department of Speech Communication, University of Denver, Denver, CO 80208 MANUSCRIPTSUBMISSIONS Send four copies prepared in accordance with The MLA Style Sheet to:

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Karen A. Foss, Department of Speech Communication, Humboldt State University, Arcata, California 95521

Should Feminists Freethinkers!

Be

"The Bible and the Church have been the greatest stumbling blocks in the way of women's emancipation." - Elizabeth Cady Stanton The rational rejection of patriarchal religion is liberating! A $25 membership in the Freedom From Religion Foundation, a nontheistic group working to protect state/church separation, includes a subscription to Today, the only Freethought freethought newspaper published in the United States. Subscriptionsonly are $15. Sample copies are $1. Send your tax-deductible to FFPR,INC., P.O. membership Box 780, MadiAon, WI 53701, (608)286-8900.

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to HumanStudiesis a quarterly journaldedicatedprimarily I advancingthe dialoguebetweenphilosophyandthe human such issues as the logicof inquiry, sciences. Inparticular, issues in the methodology,epistemologyandfoundational IIhuman sciences exemplifiedby originalempirical,theoretical and philosophicalinvestigationsare addressed.Pheperspectives,broadlydefined,area primary, nomenological | . thoughnotexclusive,focus. The journalis attractiveto scholarsin a varietyof fields, l seekingto providea forumfor those who address these issues in attemptingto bridgethe gap betweenphilosophy andthe humansciences. fromsociology, psychology,anthropology, I Contributions linguistics,semiotics,ethnomethodolgeography, history, : ogy, politicalscience,and,of course,philosophy,areespeciallywelcome. Some Recent Articles

P. D. Ashworth:'L'enfer,c'est les autres:Goffman'sSartrism.A.T. Nuyen: Sociobiology,moralityand feminism. P. A. D. Weeks:Error-correction techniquesandsequences framework. in instructional settings:Towarda comparative D. MichaelLevin:The bodypolitic:Politicaleconomyand the h humanbody. R.H. Hycner:Some guidelinesfor the data. analysisof interview phenomenological * Subscript

Information ration

I1986,Volume9 (4 issues)

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Graduate Program at SUNY/Buffalo The Philosophy Department at SUNY at Buffalo is interested in attracting qualified women to its flexible and diversified Ph. D. program. Beginning in 1987 we will offer the opportunity to take seminars for credit through the Graduate Group in Feminist Studies. These multi-disciplinary seminars are focused on a variety of themes related to foundationalwork in feminist theory. For more information contact: Dr. CarolKorsmeyer, Chair, Admissions & Financial Aid Committee, Philosophy Department, SUNY at Buffalo, 607 Baldy Hall 14260.

SubJection

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Women John Stuart Mill

Since Old Testament days discrimination has been the rule in history. John Stuart Mill offers compelling arguments against the prejudicial manner in which women were disenfranchised, their property rights infringed, and the secondclass status they experienced within marriage. Millsets the keen sights of his critical, analytic eye on the sociopolitical justifications for gender supremacy in nineteenth-century Britain, and in doing so, he strikes a powerful blow for women's rights, the reverberations of which are still being 107 pages felt today. BOOKS PROMETHEUS

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General Editors: Gloria Bowles and Renate Duelli Klein

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ConsultingEditor:Dale Spender

STOPPING

RAPE: Successful Survival Strategies

by Pauline B. Bart & Patrica H. O'Brien aboutthe experienceof rapefromthe victim'spoint "Theauthorswrite with feelingandunderstanding of view. BartandO'Brienexhaustivelydocumentthe diversityof active strategieswomen can anddo use to resist rape. This is the kindof book that mothers (andfathers) shouldgive their daughters." 216 pp.

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FOR PEACE: A Feminist Perspective

by Birgit Brock-Utne, Universityof Oslo, Norway "{Brock-Utne]hasa tremendousskillfor offering ideas,questions, anddirectionsfor future work on peace from a feministperspective; and her style moved me to want to act . .."

-Margaret Hancock, Women's Program Newsletter, InternationalCouncil for Adult Education

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1985

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BLACK FEMINIST CRITICISM: Perspectives

on Black Women Writers

by Barbara Christian authorsandblackwomen'sliterature ".. .A muchneededliteraryandhistoricalperspectiveon individual as a whole." 288 pp.

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THE SISTER BOND: A Feminist View of a Timeless

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Connection

edited by Toni A.H. McNaron "I highlyrecommendit. The backgroundinformationon the sisters andtheir famouscounterpartsis fascinatingand well-written ... I wanted more!" 144pp.

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TEACHING SCIENCE AND HEALTH FROM A FEMINIST PERSPECTIVE: A Practical Guide by Sue V. Rosser Thisindispensible guide focuses on the content andmethodologicalapproachesusefulin teachingbasic andappliedscience courses from a feministperspective. More than 30 syllabiof courses actuallybeing offered demonstrate that feministtheory is being put into practice. 300 pp.(approx.) 1986 0339972 softcover $15.00 033135 I hardcover $27.50

FEMINIST APPROACHES

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edited by Ruth Bleier This exceptional group of essays pushesbeyond the criticismof mainstreamscience to examine the formulationof sciences whichwillbe transformedbyfeministperspectivesandapproaches.The impact and revolutionaryconsequences of feministperspectivesin the scientificfields are demonstrated. 224 pp. 032786 9 softcover 1986 $12.50 032787 7 hardcover $27.50

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you're interested in being up to date on women's news; receiving info on women's groups and organizations; finding out about the many resources in the feminist community, then subscribe to Communiqu'Elles today! Subscriptions: $1 2/1 yr $ 22/2 yrs $ 30/3 yrs $18/institutions

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Teaching

Philosophy Contents StephenSatris KathrynRussell& LynRobertson EugeneHargrove VirginiaKlenk JohnPortelli M.W.Jackson David Hitchcock& EliasBaumgarten Fransvan der Bogert Reviews

September, 1986

Vol. 9/3

StudentRelativism TeachingAnalyticReading and Writing Moria:A ComputerSimulationfor IntroductoryPhilosophy Self-Paced Logic WithoutComputers On Reed and DiscussingPhilosophy withChildren Using the LockeGame ConflictingAffairs TheCase of "TheBorrowedSyllabus"

Subscriptions (4 issues): $16 individuals; $35 others. Add $2 for postage outside the USA. Send orders to the Philosophy Documentation Center, Bowling Green State University, Bowling Green, OH 43403-0189. Ed by Arnold Wilson, University of Cincinnati, Cincinnati, OH 45221-0206.

The Journal of Philosophy SUBSCRIPTIONS

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Published bi-monthly 1904-1976, monthly thereafter. All back volumes and individual issues are available, also a Cumulative Fifty-year Index, 1904-1953 and a Ten-year Supplemental Index, 1954-1963. Back volumes 1976present also available in microform. Please inquire for price lists and shipping charges on back orders. 720 PHILOSOPHY HALL, COLUMBIA UNIVERSITY, NYC 10027

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FORUM '85

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Nairobi,Kenya InJuly 1985, over 13,000 women gathered in Nairobi,Kenyato evaluate the past ten years and plan for the future.To document this event, Connexionshas put together a special issue-64 pages of interviews, analysis, workshop reports and photos. O Please send me (includes postage)

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A feministreviewof literature, artsandculture

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OUT AND POWERFUL Landmarkwritingson the empowerment of Women and Gays in... "StayingOut:

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Editors JOHN M. ANDERSON, JOSEPH J. KOCKELMANS and CALVIN 0. SCHRAG Man and Worldis an international philosophical quarterlythe i purpose of which is to establish closer and more immediate contact among the countries of North, Central and South America and the countries of Europe by providing a means I of discussing philosophical issues of mutual interest. Inorder to foster the journal's main goal, the following general policy has been adopted: i Man and World is dedicated to a discussion of fundamental philosophical problems and original solutions to them. - it is concerned with reflecting the philosophical dimensions of all areas of human experience, such as politics, art, morality, science, religion, etc.; - it is not explicitly related to any institution or to any trend or school in philosophy; II - it offers the leading philosophers of the various countries the possibility of expressing their ideas in English, French or German; :? - it presents short surveys in English of all articles not written in English; - every issue contains a chronicle of the most significant . current events in the philosophical world of each country represented.I

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PROTEUS A

Journal

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Ideas

is proud to present its fall issue devoted to the topic of "Women, Government and Politics." Dr. Mary Frances Berry has written the lead article that deals with the inclusion of women of color in the political arena. Dr. Berry is a professor of history and law at Howard University and serves as a commissioner on the U.S. Commission on Civil Rights. Dr. Berry is joined by the Schneiders, a husband and wife team, writing on the combat exclusion policy for military women, Glynis Carr through Virginia Woolfs Three Guineas explores "waging peace." Other articles explore the feminine connotations of poverty; the affect government cutbacks have on women; the effective speechmaking of Queen Elizabeth I; and women's ambivalent attitude towards power. Copies of this issue are available at five dollars each. For information and or copies contact: Terry DiDomenico Office of Public Relations/ Publications Shippensburg University Shippensburg, PA 17257 (717) 532-1201

JOURNALOF FEMINIST STUDIESIN RELIGION The JOURNAL OF FEMINISTSTUDIES IN RELIGION is a channel for the disseminationof feministscholarshipin religion and a forum for discussion and dialogue among women and men of differingfeminist perspectives. The JOURNAL has two parents:the academy,in which it is situated, and the feminist movement, from which it draws its nourishment and vision. Its editors are committed to rigorousthinkingand analysisin the service of the transformationof religiousstudies as a disciplineand the feminist transformationof religious and cultural institutions. Two issuesper year.

EDITORS: Judith Plaskow, Manhattan College, and Elisabeth Schissler Fiorenza,EpiscopalDivinitySchool

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FeministIssues FEMINISTISSUESis a biannualjournalof social and political theoryconcerningthe current situationof women worldwide. FI explorescentralfeministquestionsin ways relevantto the daily lives of women everywhere.FI is uniquelycomparativein its framework.Emphasizingan internationalexchangeof ideas, FI strengthensand enrichestheoreticalanalysisabout the women's movement.As a result, FI is of interestto a broadrangeof social scientistsas well as those for whom issuesof sex and genderare central.

Articles of enduring interest already published on: RADICALFEMINISTTHEORY* MoniqueWittig arguesthat "man"and "woman"are economic and politicalcategories,not eternalones * Colette Guillauminanalyzesthe notion of difference* MoniquePlaza examinesideologiesagainstwomen * Nicole-ClaudeMathieuon biologicalpaternity versussocial maternity. IVANILLICH'STHEORYOF GENDER* Arlie HochschildexaminesIllich as an ideologue in scientist'sclothing * Robin Lakoffaskswhetherthe word genderis scientificor imaginative* Clair BrowncritiquesIllich on economicsexism* Nancy Scheper-Hughesoffers an anthropological responseto Illich'sclassificationscheme * Lillian B. Rubinon gurusand easy solutionsto gender problems. SOCIALPROBLEMS* KathleenMoranoffersa feministtheoryof poverty * TerryArendell examinesthe inequitiesin divorce * Reva Landaulooksat houseworkas a feministdilemma. SEXUALBIASIN SCHOLARLYDISCIPLINES* GeraldineJoncichCliffordexploresgender and Americanhighereducation * Colette CapitanPeterexaminesa historicalprecedentfor patriarchal oppression* Paola Tabet on sexualdifferentiationin the use of tools * Noelle Moreauinvestigates sexualbias in demographicstatistics. WORLDCULTURES* Fatima Mernissiexamineswomen and WOMENIN CONTEMPORARY the impact of capitalistdevelopmentin Morocco* JunkoWadaKuninobuon the developmentof feminismin modernJapan * SouadHalila detailsthe emancipationof Tunisianwomen * Sophie Ferchiouexploreswomen'swork and family productionin Tunisia. Mary Jo Lakeland and Susan Ellis Wolf are co-editors of FEMINIST ISSUES; Monique Wittig is advisory editor. Correspondentsinclude: Colette Guillaumin, Arlie Hochschild, Junko Wada Kuninobu, Nicole-Claude Mathieu, Fatima Mernissi, Noelle Moreau, Colette Capitan Peter, Monique Plaza, Paola Tabet, and Helene Vivienne Wenzel. PublishedbiannuallyFounded1980. Subscription rates: Individuals $15/yr, $28/2 yr; Institutions $25/yr, $47/2 yr. Domestic first class add $3.50/yr. Outside the USA add $2/yr surface mail, $7/yr airmail. Single copies (min. order $10): Individuals $7.50, Institutions $12.50. ISSN 0270-6679 Feminist Issues Please addressinquiries and ordersto: TransactionPeriodicalsConsortium * Dept.701 0 Rutgers-The State University * New Brunswick, NJ 08903 distributors forJapan: for Europeandthe BritishIsles: Exclusive Exclusivedistributors MaruzenCompany.Ltd., 3-10 Nihonbashi, Clio Distribution Service.55 St. ThomasSt., Oxford, 20 Chome.Chuo-;Ku. OX1IJC.England Oxfordshire, 'okyo.Japan

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