The Limits of Constructivism: Can Rawls Condemn Female Genital Mutilation?

Abstract

Constructivist political theory, championed most prominently by John Rawls, builds up a conception of justice from the minimal requirements of political life. It has two powerful attractions. It promises a kind of civic unity in the face of irresolvable differences about the good life. It also offers a foundation for human rights that is secure in the face of those same differences. The very parsimony that is its strength, however, deprives it of the resources to condemn some atrocities. Because it focuses on the political aspect of persons, it has difficulty cognizing violence done to those aspects of the person that are not political, preeminently the body. Constructivism thus can be only a part of an acceptable theory of justice.Constructivism develops an account of human rights on the basis of a thin conception of the person and her needs, abstracting away from controversial conceptions of human flourishing, and then deduces basic rights from this thin conception. The hope is that these rights will remain robust whatever ends the actual people who comprise a society turn out to have. This strategy works well for some rights, notably the right to free speech. But people have urgent needs that go far beyond what is necessary to exercise their moral powers or to participate in democratic dialogue.I will focus on one extreme human rights case: the practice of female genital mutilation (FGM), which, most agree, violates basic human rights. Doubtless Rawls was appalled by the practice. Yet his theory cannot generate a basis for condemning it. A satisfactory conception of human rights must draw upon some normative source beyond that offered by constructivism. This conclusion is reinforced by considering the work of another political liberal, Martha Nussbaum, who offers a more coherent basis for rejecting FGM. Nussbaum accomplishes this goal, I will show, only by silently abandoning constructivism.

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