Liberty and Feminism.

• Author: Epstein, Richard A.

What is the relationship between the stares of women and the cause of liberty in modern times? The very tone of the question may suggest the anachronistic nature of this article. After all, the major battles over the stares of women in the United States were fought long ago. They were, as it is sometimes difficult to remember, battles over civil capacity (for example, during the nineteenth century, the ability of married women to make contracts in their own right, to give evidence, to serve on juries) and over political capacity (for example, during the early twentieth century, the right of women to vote in political elections and to stand for office).

At the time, the resistance to these simple and self-evident claims was so great that in retrospect it is hard to fathom the political turmoil generated by such modest reforms. The strife was at least as great as the present-day contention over civil rights and affirmative action. Of course, the resolution of the major questions at issue by 1920 did not put an end to debates over the role and place of women in society. In this article I hope to give some sense of how the debate has progressed, and to indicate why the very arguments that rightly led to the legal reforms affecting the status of women during the nineteenth century militate against the demands for reform from the late-twentieth-century feminist movement. In stating this position, I do not mean to position myself in the vanguard of reaction. On the contrary, I believe that the progressive ideals of the nineteenth century remain just as progressive today.

The Basic Intellectual Framework

My political orientation is libertarian and laissez-faire, and the philosophical approaches I use to support that position are both utilitarian and consequentialist. These declarations require some qualification. In characterizing my position as libertarian and laissez-faire, I do not mean to embrace the smallest-government version of either philosophy. I consider indefensible the libertarian position that categorically excludes state provision of infrastructure and other public goods and condemns the use of the eminent domain power. The first task of government may well be to control the use of force and fraud, but the provision of public goods such as roads and courts requires the use of public power to assemble the lands and to insure open access. Taxation therefore becomes the preferred means for collecting revenue. That revenue, if spent ideally, would yield benefits to each person at least equal to the taxes paid. The eminent domain power could then be used to assemble parcels of land for common purposes in situations, such as highway construction, where individual owners have holdout positions that could block a project that serves the common good.

This reference to the common good suggests the utilitarian foundations of the system. I do not conceive of utility as a detached entity or ideal that deserves respect in and of itself. Utility does not hover above the crowd and eliminate the need to see the effects that social policies and the creation of legal rights and duties have on various individuals in society. On the contrary, my account of the common good is intensely individual. It seeks to recognize that any government scheme that limits or controls individual rights should work for the benefit of all people so limited. The common good is one in which all individuals share as individuals. It is not one in which the majority controls the fates of the political minority by political fiat. The key task of political institutions and political theory is to identify and secure rights that work to this common advantage. It is to allow the majority to govern the state but not to trample the minority.

Working out the issues set by this agenda can be difficult. The takings law is exceedingly complex even with respect to the condemnation of particular parcels of land. It becomes even more complex when one considers the state regulation of land use, intellectual property, and the various markets for labor and commodities. For the moment, however, we can put these complexities to one side, for they have little to do with the battles over civil and political status that dominated the nineteenth century. The issues of civil and political capacity concern the ability of individuals to enter into ordinary business and social transactions and to participate in the general political life of the nation. They are the sorts of rights that can be guaranteed to all individuals even if the state does not adhere to any single sound principle of taxation and regulation.

The basic point is that the ordinary definition of liberty gives one not only the capacity to move about freely but also the capacity to better oneself through voluntary transactions. The logic of those transactions is that of mutual gain through mutual consent. We can agree that individuals have complex visions of themselves and of what actions or states of affairs serve their self-interest. Still, all can improve their lot through exchange by surrendering what they value less for what they value more. How could one defend a system that excludes any portion of the population from these advantages? To be sure, in any particular case someone might be relieved by the exclusion from the economic arena of those perceived as competitors rather than trading partners. But if we consider the entrance of women into the marketplace (or indeed the entrance of any other group previously subjected to systematic exclusion), the overall balance of convenience tilts sharply in favor of free entry. New entrants are not merely potential competitors; they are also potential coworkers, suppliers, customers, and consultants. When they assume those roles, the new entrants enhance the vitality of the social system as a whole.

Exclusions in this situation operate as an internal barrier against free trade, with consequences no better (and arguably worse) than those arising from the formal exclusion of foreign goods and labor via taxes, tariffs, quantitative restrictions, quotas, and the like. The necessary consequence of the exclusion is that gains from trade are blocked by the artificial barrier, leaving the sum of production possibilities reduced with no evident distributional advantages to offset that social loss. Moreover, the classical prohibitions on women's contracting and women's suffrage gave rise to suspicion, distrust, and regret that could have easily been eliminated by removing the barriers to entry that everywhere frustrated the operation of competitive markets.

One reason why the nineteenth-century case for women's rights was (and is) so strong is that it dovetails neatly into any and all theories that recognize the limits as well as the uses of markets. For example, the arguments for and against an antitrust law that limits horizontal price-fixing or mergers scarcely touch upon this issue. One cannot conceive of a single argument in which the exclusion of women from the marketplace improves the resolution of such questions. Likewise for issues of taxation and regulation. Moreover, we can think of good reasons why systematic exclusion from the political process is likely to cause profound dislocations: what gain arises from a system in which all are bound by but only some participate in decision making? A dominant set of solutions leads all libertarians and utilitarians to support the progressive movements of an earlier age.

From Women's Liberation to Feminism

What has brought about today's split between the feminists and the free traders who march under the utilitarian and libertarian banners? The first point of separation pertains to the name of the movement. When the present wave of feminist activity burst on the scene...