305 - Gender Justice

Gender Justice
By David L. Kirp, Mark G. Yudof, and Marlene Strong Franks
Chicago, University of Chicago Press, 1985. 280 pp. $19.95.

Two political scientists and an academic lawyer (Yudof) here argue that freedom of choice, rather than equality, should guide government policy on women. They survey sexually discriminatory law, and laws against discrimination, and suggest that the way to correct injustice is to restrain the forces that restrain women's choices. A free-choice policy, they say, is better than a policy that treats men and women the same.

For example (my example), a manufacturing company has many women working at machines but few working in maintenance of the machines; and maintenance work pays better. Existing legal policy on jobs would pressure the employer to get women into maintenance. Kirp, Yudof, and Franks would prefer a legal arrangement that monitors possible exclusion of women from maintenance, but would leave it up to the women whether they want to seek maintenance jobs.

That argument can underestimate the power in women's lives of family, religion, and community. (It may be an evil worth curing that women are not taught to want to be mechanics.) And these authors may overestimate the wisdom of social engineers who think they can tell the difference between a restraint and a blessing. But they handle those risks well. Their assessments are heavy on common sense. Their advice is not astonishing, but it is a conservative middle-way between anti-masculine radical feminists and people who yearn for a past that never was.

Their problem is the frail notion that what makes a thing good for a woman is that she chooses it. They buy into the ethics of autonomy, and do so, by and large, without criticism. Most American women don't accept that ethic, and don't admire people who live as if they believed it. Classical and biblical theories see the law as a teacher and even as a moral leader. Maybe free choice is the best modern government can do, but it isn't very good.

Thomas L. Shaffer
School of Law, Washington and Lee University
Lexington, Va.