A reader’s Guide* to
Martha C. Nussbaum, Sex and Social Justice (Oxford, 1999)
Part I: Justice
6. Equity and Mercy (no reading questions at present)
Part II: Sex
8. Objectification (no reading questions at present)
11. "Whether from Reason or Prejudice": Taking Money for Bodily Services"
12. Platonic Love and Colorado Law
13. Sex, Truth, and Solitude
15. The Window: Knowledge of Other Minds in Virginia Woolfs's 'To The Lighthouse'
The Reading Guide
The opening stories lead to a claim on p. 5: Dignity is a core idea, and it is a core liberal idea. Where do these questions about dignity take us?
The five “salient features” or “elements” of Nussbaum’s perspective are described in the section that begins on p. 6. What are the five? What, exactly, are these?
Under #1: Why should a perspective be internationalist? Why is this part of her method? Note the quick connection to justice, and to development economics.
Under #2: Her humanism is, in part, a response to relativist accounts of human well-being, searching instead for objective standards of well-being. What is the problem she sees with cultural relativism? Why the emphasis on women? Note this section leads directly to a defense of political liberalism.
Under #3: What is the core liberal idea? (10) Those of you who have read Mary Wollstonecraft will want to compare this account. Notice that she links analysis with the status of women with the claim that liberals have to “take a stand about what is good for people.” (11) Is this consistent with your understanding of liberalism?
Under #4: What does it mean to say that preferences are socially shaped? So what? Notice that she lists several thinkers, including Adam Smith, that walked this path before her. What did Smith say about this, for example? Why will you want to “investigate the social origins of desire, preference and emotion”? (13) You should know this is a big question in the discipline of economics. The way we treat preferences turns out to be an important step in building a world view.
Under #5: Norms of caring and sympathy, which our society more often link to female rather than male roles, are important in Nussbaum’s argument. In this brief introduction she says they have been the subject of disagreement among feminists. What are the different camps she describes? Note where she takes the argument: “Even in societies that nourish problematic roles for men and women, real men and women also find spaces in which to subvert those conventions….” (14)
On p. 15 Nussbaum begins a section about the connection between gay rights and women’s rights. What is the connection? A central question here: Is feminism a threat to the nuclear family? How should we go about answering that question? She gives an answer at the top of p. 16—study such issues in “a historical and cross-cultural manner….” Why? Why bother with historical consciousness of “the great variety of demarcations that have appeared to make sense in people’s lives”? She describes an early concern with these questions when she read Plato’s Phaedrus. What kind of an argument is this?
On p. 16 Nussbaum begins a section on “sex and the sexual.” She asks, “How do I connect the sexual domain with the other areas of women’s inequality?” One way to answer the question begins at the bottom of the page—She agrees with J.S. Mill that sexual desire is socially shaped, so our distinction between sexual and nonsexual aspects of life is not sharply drawn.
The next section begins with what she says are common oversimplifications of feminism. But look where she goes with this section. This is about liberty. The legal guarantees offered by the liberal state create a framework for agency, the basic condition for liberty. What is the content of the guarantees offered to liberal individuals? What should they be able to demand from their society? In this section Nussbaum implies that the Lockean limit on these guarantees may not be the last word.
On p. 20 Nussbaum begins a section called “Political and Personal.” This is an enduring topic in feminist challenges to liberalism. What are the boundaries between the public and the private realms? Nussbaum regards the family as “part of the basic structure of political society.” So? How is this connected to the liberal values of toleration and equality? Why does she make a distinction between law and moral argument here? As she says on p. 22, toleration can be an especially difficult liberal value. Why? The special cases of pornography and prostitution are introduced in the last paragraphs here.
The last section of the chapter is mainly methodological, and important because of it. Why does Nussbaum want to ground her argument in a tradition? Who are the main figures in that tradition? Where is she going to look for evidence about claims raised in the book?
Chapter 1: Women and Cultural Universals. (pp. 29-54) This chapter is about how we conceive of justice situations. How do we come up with the thought, “this is a justice problem”? You can look ahead to the last para., on p. 54, to see where the argument takes us. Do keep track of the people described in the chapter (such as Metha Bai); Nussbaum will refer to them later.
It is fairly easy to recognize the traditions in a society; Nussbaum refers, for example, to Supreme Court opinion for evidence of widespread opinions on the proper sphere of women. Near the bottom of p. 30 she describes the main claim in the chapter. (“And what we are going to say is….”)
The argument begins with numbers regarding the unequal life chances of women. (pp. 31-2) Why do these raise a question about justice? Nussbaum argues that most approaches to the development of poorer parts of the world ignore this (she refers to them as the Becker and standard utilitarian approaches), and that the Rawlsian approach too is in sufficient. Why?
She offers instead the “capabilities” approach, which she says is “bound to be controversial.” Make careful notes about the capabilities approach. It is perhaps the main idea in the book.
The next few pages (35-9) describe the chief objections to the “universalism” that is part of the capabilities approach. What are they?
On p. 39 Nussbaum begins a sections that describes the “central human functional capabilities.” How is the list connected to liberty? To a conception of a good life? Are there any particular parts of the list that strike you as particularly interesting or problematic?
As she says on p. 42, the capabilities approach entails a policy focus, in pursuit of a moral claim (p. 43). Nussbaum writes: “Without some such notion of the basic worth of human capacities, we have a hard time arguing for women’s equality and for basic human rights.” Why? Do you agree? In the rest of this section she describes other consequences of the approach.
In the next section (starting on p. 47) she says there are several criticisms of her approach. What are they?
neglect of historical and cultural differences
neglect of autonomy
The last section in this chapter (starting at page 51) examines another objection to the capabilities approach. Is it not possible to defend some division of labor along gender lines? She outlines two possible positions, and labels them A and B. What are they? Are the objections convincing?
As noted in the introduction, Nussbaum is a liberal, and this chapter is a defense of liberalism. As she note on p. 56, the core ideas of liberalism have often been cited by feminists as “inadequate to the needs and aims of women….” The promise of this chapter is found at the bottom of this page.
What is liberalism? On p. 57, she says it is a family of positions. Who are the family members? Among liberalisms, it seems easier to disagree on economic distributions than on, say, the role of religion and speech. Why?
On p. 59 Nussbaum begins a section on “individual and community.” What is the charge against liberalism? Egoism and moral self-sufficiency are connected to arguments about the family, as she notes on 61. But liberals can, insists Nussbaum, be other-regarding (62). If that is the case, what does it mean to begin political theory by focusing on individuals? Notice how, by the bottom of p. 63, this approach to liberalism tends to be international in scope, and it has us look squarely at the dichotomy between public and private spheres.
This part of the argument is very important to Nussbaum’s overall project. The next two pages (64-7) briefly describe a conflict within liberalism that will reappear throughout the book. How does she rely on Mill? This section also contains a kernel of the argument about socially shaped preferences, which will be described more thoroughly in the last section (71-80) and in chapter five (pp. 146-53). But those wider concerns are beyond this brief section; for now, she claims that entails a radical program.
The section that starts on p. 67 is really a methodological argument among liberal theorists. What is this second feminist critique of liberalism? The methodological point is that liberalism does, claims Nussbaum, have us “pay close attention to history and to the narratives of people who are in situations of inequality.” (69) This is why, for example, her claim about equality of capabilities (bottom of 68) is not the same as common arguments about equal opportunity, or formal equality. What is the difference? The point also is useful in understanding communitarian objections, as she describes in the rest of this section.
The last section of the chapter, beginning on p. 71, is entitled “reason and emotion.” What is the criticism of liberalism Nussbaum addresses here? The argument is complicated. Do the classic liberal thinkers simply dismiss emotions? (73) Nussbaum uses Nel Noddings’ argument to introduce some of the difficulties with making emotions and caring predominantly feminine spheres. The point of liberalism in this matter is summed on the top of p. 77. Yet that poses a further problem we have encountered before, described further down the page, that of socially shaped preferences. Does this idea have much of a history in liberalism? Again, this is a central claim in Nussbaum’s liberalism.
This chapter examines the ways a basic freedom of conscience, religion, presents tensions with liberalism. The tensions are introduced on 81-2. Many restrictions on liberties stem from religious claims. What should liberals do?
The big problem arises when religions have been permitted to make law. (84) This happens in the US (examples?), yet more examples are found internationally. (85) Is this a reason why liberals should have an international focus? (Chapter 4 directly addresses the problem of judging other cultures.) Nussbaum addresses this problem from a human rights perspective, introduced on p. 87.
On pp. 87-102 Nussbaum presents a list of eleven areas of law where “religious discourse, and often action, has been a major influence.” (88) Which of the eleven are major issues in the US? Which appear to be most obviously violations of human rights? Which seem to be more reasonable limits? Why do the items you select belong on each list?
The difficult point in the argument is on page 102. Do you accept the claim that, in essence, the rights she discusses are prior to, or more important than, claims coming from particular religions? She makes the normative claim directly after the subtitle on 103.
As Nussbaum says on 104, it is in places like India where we can most clearly see the liberal dilemma over religion. Why? A little closer to home, she describes the argument of Will Kymlicka on the ‘tribal peoples’ of Canada. Why does she reject it?
Nussbaum makes it clear the dilemma will not go away. In the section pp. 110-114, she addresses the problem of line-drawing. What is her proposed starting point? What is the method of drawing lines? Why?
In the last two brief sections, Nussbaum describes the ongoing politics of religion in liberal polities. What practical steps does she propose? Why?
This is a small chapter that addresses a challenge to liberals (and other champions of individual rights): Is it legitimate to criticize practices of another culture? Under what circumstances? Are such judgments “imperialism?” Are relativists defenders of privleges that just happen to be ‘non-western’? Nussbaum is responding to a long-simmering debate, and will likely make no friends here. Check her notes carefully.
What is her approach to the argument? Recall the methodological claims in the earlier chapters. After setting up the controversy, she introduces the criticisms addressed in this essay. (121) Which ones does Nussbaum judge as true? Why? Which does she say are false? Why?
There is a more general claim at the end of the argument: officials have been “slow to recognize gender-specific abuses as human rights violations” but seem to be moving in the right direction. What is it about FGM that makes it a difficult human rights issue? What it is about FGM that makes it a typical human rights issue?
Nussbaum begins the essay with an assertion: A very negative picture of feminism has become widely accepted in our political culture. Do you agree? Have you seen signs of this? She responds to a book by Christina Hoff Sommers as a way of organizing the chapter. As Nussbaum suggests on 131-2, she has a vision of where work needs to be done (a more international perspective, focused on particular policy problems). This lets you know right away that there is bound to be disagreement over agendas for feminists.
As a first issue, Nussbaum discusses the categories of equity and gender feminism. What are each? Does Nussbaum accept these as useful categories? Why?
The section from pp. 133-6 reports numbers describing the situation of women in the US. What is the overall picture?
The next section (136-46) is about “violence and preference deformation.” Is the overall picture the same as the earlier section? Why? How are crimes involving sexual violence treated in comparison to other crimes? As Nussbaum summarizes on the bottom of p. 142, this is “an area in which the feminist critique has transformed and continues to transform law….”
The last part of this section serves as introduction to the next. Several issues were raised by Catharine MacKinnon, descr. on p. 144. What did the book do, according to Nussbaum? In what ways did it go beyond “equity feminism?” What does this have to do with preferences? (Notice this takes us back to an earlier point, on whether the equity/gender feminism categories are analytically useful.)
The last section in this chapter (pp. 146-53) deserves a very close reading. The argument about socially shaped preferences is complicated. Nussbaum gives several references in the notes that you may wish to consult. This is an important argument within the discipline of economics, as well, and many of Nussbaum’s references here are from economists. How does she use the concept, ‘preference?’
Note where the argument takes her. By page 148 she has taken up J.S. Mill’s argument about distorted preferences. How can we be liberal, democratic, and still maintain that many people have distorted preferences? How does a recognition of distorted or irrational preferences fit into the argument in this chapter? How should a liberal democracy behave toward its citizens who are afflicted with these distorted or irrational preferences? What is the argument against letting people simply have their preferences and pursuing them in their own free lives? This argument is developed further at various places in the rest of the book, and especially in Chapter 10. (See also pp. 64-7, 71-80, and 193.)
As Nussbaum argues by the end of the chapter, this is not a strange set of questions posed by feminists or other people who don’t like the general preferences out in society. It is an argument that is found repeatedly in the history of western political theory.
Recall from the Introduction (pp. 15-16) that the study of lesbian and gay rights (glr) holds promise for understanding liberalism. Defenders of liberty should find the subject interesting at least because it was a cause for congressional action in 1996, in the Defense of Marriage Act. (Some believed at the time that Hawaii was about to legally recognize same-sex couples, and under article iv section 1 of the Constitution other states would have to recognize them; Congress acted to define marriage as a relationship between one man and one woman.) On p. 185 Nussbaum claims that the country “is both confused and deeply divided about what its traditions support, and about whether the guidance of tradition is, in any case, good guidance.”
She lays out the plan for the argument on p. 186, middle paragrph.
Nussbaum begins the argument in section II. There is ambiguity over who is being discussed in laws about glr. Do state laws and organizations such as the U.S. Army define the issues similarly? Why does Nussbaum settle on the definition offered on p. 189?
In section III Nussbaum discusses the rights considered in the argument, in six subsections. They are:
1. “The Right To Be Protected Against Violence”….(p. 190) Do the data suggest this is a serious problem? How do police and courts treat the problem? How do we handle the problem in general? Note that in the last two paragraphs of this section Nussbaum revisits a topic we have read about earlier, socially shaped preferences.
2. “The Right To Have Consensual Adult Sexual Relations Without Criminal Penalty”….(p. 193) Are the laws of the 50 states uniform on this issue? So?
3. “The Right To Be Free From Discrimination In Housing, Employment, And Education”…. (p. 194) What does the US Supreme Court say on this topic, as suggested in Romer v. Evans? What does the interpretation of the Constitution say? What, according to Nussbaum, does it not say? Does the argument clash with the free exercise clause of the First Amendment?
4. “The Right To Military Service”…. (p. 197) Nussbaum discusses the Steffan case at some length here. Why? What does it help us sort out? What does she make of the claim that the military has a rational basis for its rule?
5. “The Right To Marriage And/Or The Legal And Social Benefits Of Marriage”…. (p. 200) Why does Nussbaum support marriage? What are the grounds for opposing it? For each point in opposition, what would it take to accept it as a convincing objection?
6. “The Right to Retain Custody of Children and/or to Adopt”…. (p. 204) How has the law treated this topic? Does the “Charles B” case represent a major shift, according to Nussbaum? (In note 67 to this section, Sweden has changed its policy…. but no other nation permits out-of-country adoptions by same-sex couples, and in Sweden the previous year only 14 children were adopted altogether, so this will not affect many people.)
In the last section of this chapter, Nussbaum responds to an argument by Roger Scruton which includes the claim that allowing gay marriage amounts to treating promiscuity in a morally neutral fasion. After some preliminary points, Nussbaum claims his is a “statistical argument.” What does this mean? Note that she finds a different version of Scruton’s argument in some of his other writings. Why does Nussbaum conclude that “the argument seems to have no bearing on the legal and moral issues” discussed here?
Note also that the last paragraph of this essay is a brief introduction to the second part of the book, about sex.
This essay is a defense of a philosopher’s approach to ethical and political questions—but a particular kind of philosopher. As you can see from the last two paragraphs, Nussbaum believes that people concerned with justice require arguments that are convincing and encourage people to act; they also need a positive vision of reconciling past injustices.
Nussbaum begins the essay with a distinction between philosophers and prophets. What are the special qualities of each? How do each interpret the approach of the other? So far, what kind of an argument is this?
Part II of the essay is a commentary on part of a book by Andrea Dworkin, listed in the notes. According to Nussbaum, what are the important features of Dworkin’s approach? Notice that by the top of p. 244 we are introduced to the concept of objectification. A more complete discussion of the concept is in Chapter 8, but the outlines are here. What is objectification? What is the Kantian view of the way a sexual relationship is related to objectification? Nussbaum’s discussion of how Dworkin departs from a Kantian view leads to an important claim in the last complete paragraph on 245, culminating in a quote from Dworkin. As Nussbaum says on 246, there is nothing terribly controversial about many of these claims (you might say that the claims are one way to define contemporary feminism). What are these claims—about sexual harassment, about rape, about domestic violence?
But, as Nussbaum says at the beginning of section III, Dworkin’s argument about “pornography is a different matter.” How so? What, according to Dworkin, is the special role of pornography?
[As background, you may want to read the opinion in the appellate court case (courtesy of a course web page on violence against women, at Harvard) about the Indianapolis ordinance referred to in the chapter. You may also want to read a defense of such laws by Dworkin & MacKinnon—a book-length source that has links to each chapter.]
As Nussbaum argues on 247-8, people who object to laws of this type need coherent arguments. What might be the objections? She describes four—what are they? What conclusion does she reach? Do you agree? Why?
Section IV closes the essay with a return to the first theme, the philosopher and the prophet. What is wrong with a “fire and brimstone” approach? Does Dworkin argue, in effect, there is a war on?
This essay further builds on the earlier arguments about socially shaped preferences, so you may want to review that section.
The first section uses passages from ancient Greek literature to bring up the idea of socially shaped preferences: “Maybe there is more custom and law in nature than we usually think.” (255) [Note: You can read more on Nussbaum’s use of Hellenistic philosophy in her Therapy of Desire: Theory and Practice in Hellenistic Ethics (Princeton, 1994). In it she argues that the Greeks can help us better understand freedom and pursue a worthwhile life.]
The first thing this means is that we need to look at what we mean by “natural.” In this essay Nussbaum looks at how some basic things in life—love, desire, and sexuality—can be thought of as socially constructed. The general argument is summarized in the first complete paragraph on 256.
Section two begins with an account of what it means to have a “cognitive view of emotion.” What does this mean? Notice that there are several dimensions to this—a response to the world, a response to things we care about in the world, and “beliefs about value, worth, and salience.” How does this add up to the claim that “an emotional repertory is not innate but learned”? Do you believe this?
On 259-61 Nussbaum argues that there is considerable variation in how this works. Cross-cultural evidence suggests there are different ways that anger, guilt, and remorse are experienced by human beings. What does this mean for the legal standard of the “reasonable man?”
The next section, beginning at the gap on 262 through 265, contains several ideas. It is an argument about the significance of the realization that humans vary in the ways their cultures tend to experience important emotions. When we look at erotic love, we see that different cultures handle it in very different ways—norms vary, our judgments about behaviors vary, the emotions connected to it may vary, and individuals within each culture may differ substantially in how they approach and experience it.
So what? Nussbaum tells us what we can take from this on 264-5: we can make ethical arguments in pursuit of better lives. From there, it is possible to begin the work of building better lives. As she summarizes on 265, “emotions become a part of the domain of moral effort….” Is this an argument about politics? How so?
In Section III (265-9) Nussbaum looks at the evidence that sexual desire itself may be socially constructed. Yet a first look at any evidence quickly leads to a consideration of what would constitute evidence—of what? The categories we use to label parts of the world (words like homosexual and heterosexual) are themselves social constructs. Individuals may work out their own relationships in the contexts of the categories that are generally used in their societies, and they may stretch or violate the categories. The discussion of Glaukon’s argument in Plato’s Republic (Glaucon, in some translations) is used here to suggest that our categories of “normal” (and otherwise) are unstable. This, Nussbaum says, leads us to more critically examine our categories. What does this mean? Can you give concrete examples?
Section IV looks at the issue of whether human bodies determine these social categories. There is evidence that cultural norms about sexuality are subject to change (the examples of Marilyn Monroe and the ways we handle babies); but we can take this evidence too far. As she describes in the case of sexual orientation, the evidence is hardly conclusive. This doesn’t mean that critics or supporters of the modal roles are right—it means there is a lot we don’t know. The evidence on familes, for example, suggests that across the world and across human history its form has varied considerably. So? What, in particular, does this mean for liberals (see the references to Mill and Okin on 272).
But look at the point we have reached. At the top of 273, Nussbaum explains: “If we thought the family was simply given in biology, and perhaps unchangeably so, there would be little point to asking about its justice.” And since those justice questions have been raised, look at what happens on the rest of this page. In the last paragraph we are led back to the capabilities argument (recall pp. 34, 39-46).
The argument thus leads to an understanding of freedom. To even be able to see socially constructed categories about love, desire and care, socially shaped preferences, we are able to recognize opportunities to evaluate and improve upon our considered notions of justice. To accept practices as “natural” lets us off the hook, as Nussbaum puts it. To see our role in making them can impose heavy responsibilities.
1. According to Nussbaum, it is clear why we generally regard taking money for the use of our sexual or reproductive capacities as bad? (276-8)
2. How do class prejudices and fears about the body and its passions enter our thinking on the topic of this chapter? (278-80)
3. Note Nussbaum’s method, described on p. 281—six categories to compare with prostitution. What insights emerge from the comparisons? Pay particular attention to private biases (and look ahead to the last line of section IV, on p. 288).
4. How does sex hierarchy produce stigma? (286-7)
5. Nussbaum reviews seven arguments typically used to justify the criminalization of prostitution. Can you identify how she uses The List (pp. 41-2) to evaluate the arguments? What else does she use?
6. What does Nussbaum propose as “the real issue” in addressing prostitution? (297) How did she arrive at this conclusion?
Chapter 14, Sex, Liberty, and Economics
(This is a review of Richard Posner’s book, Sex and Reason. And I’ve changed my mind about assigning it this week….)