SUSAN OKIN correctly observes that women’s rights conflicts are extremely salient in debates over “cultural rights.” I take this as a sign, however, that women’s rights discourse is alive and well, making productive friction on a global scale. What puzzles me is that women’s issues are so often thought to exhaust the supply of problems embedded in cultural rights projects.
Culture constrains. Sure, it may liberate too, but efforts to justify cultural rights are characteristically defective to the extent that they insist on the liberation story while suppressing the constraint story. This is, for example, where I would have to disagree with Will Kymlicka, whom Okin addresses as her representative cultural rights spokesperson.
Okin has made an interesting choice, for she shares more fundamental normative commitments with Kymlicka than she does with many advocates of cultural rights. Kymlicka, after all, argues that cultural rights are justified not despite but within liberal theory: when national or ethnic cultures assert power over their members that infringes on individual liberty, he is prepared to be just as critical as Okin. Thus their disagreement appears to be primarily empirical: Do women’s rights conflicts have the gravity and frequency that Okin claims they do, or is Kymlicka’s relative inattention to them a good register of their marginality and ready resolvability?
I think the problems run much deeper even than that. Consider one argument that Kymlicka makes in his fascinating book Multicultural Citizenship.1 Kymlicka sets up criteria that have the effect of drastically reducing the number of “problem cases” he needs to acknowledge. The underlying conceptual problems suggest that Okin’s objections on behalf of women miss more general tensions that are more interesting, more agonizing, and possibly even more productive than the tension between women’s freedom and their involvement in culturally structured private spheres.
Kymlicka argues that national and ethnic groups protecting themselves from outsider encroachments do not necessarily thereby threaten the autonomy of insiders. Most often they want only to survive as groups. When that is their goal, he argues, liberal theory cannot object; indeed, it should welcome the provision of meaningful choices to group members. Kymlicka points the finger at religious communities, and away from national and ethnic communities, for seeking to protect their boundaries in ways that constrain members and thus offend liberal tenets; and he is ready to join Okin in objecting, on liberal grounds, when this occurs.2
Thus it is an important part of the Okin/Kymlicka empirical dispute that Kymlicka rules out only the intentional constriction of members’ rights. On his view, if a group-preserving policy has unintended, even if predictable, side effects that infringe individual rights, threats to individual liberties are weak, indirect, and easier to explain away.
The elevation of intention to pivotal status here is problematic. Surely where the liberal model of primordial individual rights is absent or attenuated, it is unlikely that conscious intentions will register the full trade-off between cultural preservation and group-member rights. (The point should be familiar to left-multiculturalist and left-liberal critics, who raise it when the Supreme Court refuses to find racial discrimination without proof of intent. What, the Left quite properly asks, about the strenuous support for white privilege contributed when whites invidiously undervalue and undercompensate people of color without meaning to?) More seriously still, Kymlicka’s crisp intention/accident distinction misses something important about culture, which, if it exists at all, systematically produces constraints that it then hides as habit, assumption, worldview.
Kymlicka’s example of an unproblematic, because unintentional, restriction on group-member rights is a native tribe that holds land in common. As Kymlicka notes, the tribe’s ultimate purpose is to “provide protection against the economic and political power of the larger society to buy out or expropriate indigenous land.”3 This is an extremely important purpose: as the Dawes Act experiment demonstrated, converting reservation land to individual Indian ownership allowed white buyers and lessees to make confiscatory deals and then to move into the midst of Indian tribes, diversifying the cultural milieu in a way that was, and continues to be, devastating for tribal cultural continuity.4 But Kymlicka vastly understates the gravity of the trade-off that holding land in common instead involves. He merely notes that tribe members “have less ability to borrow money, since they have less alienable property to use as collateral,” and concludes that this is a mere “by-product” and not a “significant restriction.”
The full picture of tribal common land is much more complex. Typically it will mean that most tribe members are left not with less alienable property but with none. Economically, this means not merely difficulty in finding collateral but complete abstention from the surrounding market economy. And at this point Kymlicka’s failure to take note of culture’s constraints becomes visible: he has not mentioned the “purpose” of promoting cultural interdependence and cohesion by blocking—for people with acute material needs—the exit marked “sell or lease your land and move away from the tribe.” There is nothing to be gained by squabbling over intentions here: common ownership of land has not merely fiscal but cultural effects; and the cultural effects include constraint. Seen in this way, tribal common land seems not much different from the common property system of the Canadian Hutterite Church, which, Kymlicka concludes, does meaningfully conflict with individual autonomy.5
Kymlicka’s sunny story of culture focuses on the ways in which it creates meaning and thus the possibility of meaningful choice.6 Thus he regards national groups as inherently liberal if they determine membership by cultural rather than racial criteria: “[I]t is one of the tests of a liberal conception of minority rights that it defines national membership in terms of integration into a cultural community, rather than descent.”7 These are useful criteria, and do provide a conceptual zone of harmony between group rights and liberal values, but they are much more problematic in the real world than Kymlicka acknowledges. An example that also demonstrates the way in which an exclusive focus on women’s rights obscures the depth and complexity of cultural claims is the notorious Supreme Court case Martinez v. Santa Clara Pueblo.8 There the tribe was charged with discriminating on the basis of sex in its membership rules, which recognized as a tribe member the child of a male member who married outside the tribe, but not the child of a female member who did the same thing. The women’s rights focus on the case noted that the father of the first child was treated more favorably than the similarly situated mother of the second child. Seen from the perspective of the two children, however, the rule establishes membership based on descent, precisely what Kymlicka regards as illiberal.9 And seen from the perspective of a young female tribe member trying to decide upon a heterosexual partner, the rule creates strong incentives for endogamy and disincentives for exogamy. To be sure, she can opt for the latter, and we could say that the rule makes her choice more meaningful. But it seems only frank to add that it makes her choice one between reward and punishment.
Cultural survival policies often focus not on women but on children. And this is no accident: raising a child in a culture—any culture—implants not only the child in the culture but the culture in the child. Kymlicka does find violations of liberal norms when religious groups withdraw their children from public schools so as to prevent them from being “tempted to leave the sect and join the wider society.”10 But this is the express goal of all cultural preservation policies that focus on children. As Charles Taylor has noted, Kymlicka’s theory does not say why it is consistent with liberalism not merely to preserve threatened cultures for those who would claim them today, but to preserve them for “indefinite future generations” as well.11 And as K. Anthony Appiah concludes, a program that designates future generations on the basis of their descent as the beneficiaries of cultural preservation also stipulates that they shall undergo the constraints of cultural implantation. “It seems to me not at all clear that this aim is one that we can acknowledge while respecting the autonomy of future individuals.”12
The family is a place where illiberal things happen not only because of male superordination over women but because of adult superordination over children. This suggests that a thoroughgoing critique of the relative possibilities for the sunny and the grim stories of culture cannot be achieved with the resources of feminism alone. Cultural implantation is, moreover, inevitable: parents will always constrain their children merely by enculturating them. This suggests that dominant cultures and ethnic and national cultures within them—and, indeed, feminism too—have some very hard questions in common.