Feminists have long criticized the adequacy of consent in defining non-coercive heterosexual sex. In order to comprehend the grey area between unwilling yet consensual sex, and outright sexual assault and rape, the concept of ‘unjust sex’ is increasingly used. As Ann J. Cahill argues, unjust sex is sex that a woman is pressured into having, but in which her agency still plays a role.
Political philosopher Martha Nussbaum discusses philosophy’s capacity to influence public life; the future of political liberalism and the role of the state; and her critique of radical feminist thinkers including Catharine MacKinnon and Andrea Dworkin.
Stelios Virvidakis: What do you think about the possibility of philosophy playing a more active role in public life, education, applied ethics, and so on?
Martha Nussbaum: There are many possibilities. And countries are very different. I find that the US is in a way one of the most difficult places for philosophy to play a public role because the media are so sensationalistic and so anti-intellectual. If I go to most countries in Europe I’ll have a much easier time publishing in a newspaper than I would in the US. The New York Times op-ed page is very dumbed down and I no longer even bother trying to get something published there because they don’t like anything that has a complicated argument. So I find the US very frustrating. At the other end of the spectrum, the Netherlands has a tremendous public culture of philosophy. They have a very large selling journal called Philosophy and my Upheavals of Thought, which is an extremely long book and is even longer in Dutch, not only sold very well in English, but was translated into Dutch a few months later and has already sold 4000 copies. So I feel that that’s quite extraordinary. But it’s because there are TV programmes on philosophy, things involving not just political philosophy, but things like the emotions, the mind, and so on. But one just has to cultivate that over a long period of time; the journalists, the media all have to play a role.
I have found it possible to get involved in philosophy more internationally and this was in a way a matter of luck. There is now a large and I think quite exciting association called the Human Development and Capability Association, which was launched three years ago at a conference in Pavia, Italy. Before that, there were also three other preparatory conferences; at the first, people talked about Amartya Sen’s work on capabilities; the second one was about my work; the third was more general. There was a lot of interest. We were finding that young people – and not only young people but mostly – in economics, political science, philosophy, and politics were coming from all over the world. At the conference at which we officially launched the Association there were 200 hundred papers from over 86 countries. Sen was the president for the first two years; now I am the president.
But of course it is partly a matter of luck: we had the good luck to have a group of young and very talented academics who just decided this should happen. They would just not let anything stand in their way and they put in so many hours of their own work. And we now have the Journal of Human Development that is run by the United Nations Development Programme and publishes the best conference papers every year. And we’re getting more and more money now to pay for the travel of people from developing countries. I think the best thing about it is that it brings people together, so that people who are working on capabilities. There are now over six hundred members of the Association, all working together, and they learn a lot about the different arguments being made. The networking between the academic and the policy world is also very strong. Our 2005 conference was at UNESCO in Paris where we had people in UNESCO participating. So I feel that’s what I am now most involved in and I feel that’s very hopeful.
But of course, there are dozens of other thriving partnerships in hospitals – certainly in America, but I think in many other countries – between philosophers and doctors pushing the issues of medical ethics. In the US, this changed medical practice to a great degree, particularly in the area of decision-making. There used to be an assumption that doctors know best – and they hadn’t even thought about the distinction between the patient’s interests and the patient’s rights! When the philosophers got in, they insisted that that distinction was quite central, that deciding in somebody’s best interests is one thing but giving them the right to decide is another. So now everyone understands that distinction and standards of informed consent have been refined. Now there is very sophisticated related work on emotions being done. I’ve just read a new paper by a psychiatrist who works in a hospital about conditions under which emotions actually remove the decisional capacity – although doctors haven’t recognized that because they don’t really understand how the emotions work. So in all kinds of ways this is getting to be a very major force.
I think in law, which is one of my academic appointments, it’s a little bit harder because the world of the law firm is a profit-oriented world. So I can teach people about social justice, but when they go out and work with firms they’re not really in a position to say, “this firm should be striving to produce social justice”. Yes, if the firm takes on cases on a pro bono basis (charging no fees) they may be involved in issues of social justice, but it isn’t so easy. And if lawyers go into court and talk to the judges, again they are going to be very constrained by the legal precedents and won’t have much latitude to inject their philosophical perspectives. But getting people to think about these issues at all is a good thing, especially when economists are teaching them to think about other issues; one can provide a kind of counterweight to the law and economics movement, anyway.
There are a lot of philosophers who contribute to discussions about law, for example Ronald Dworkin in his debates with Richard Posner. I don’t know how seriously judges, and Supreme Court judges for that matter, take these things into account, or to what extent they are influenced by philosophical discussions.
I think Dworkin has had close to zero influence on the actual development of the law, and the reason is partly of course that judges aren’t supposed to bring in any old theory they like but to look at the precedents and the principles involved in a case. But I think there is another reason: while Dworkin is a first-rate thinker, he doesn’t have much practical legal background, and in his books he doesn’t talk much about actual law, so his theories need an intermediary before they can be applied to actual cases. Of course, he writes pieces in the New York Review of Books about particular cases, but those pieces are not very tightly connected to his theories. So I think a middleman is needed before that connection could become a reality. There are people who try to introduce considerations of autonomy and equity and so on in a much more hands-on way. I myself I am writing a book about religion and the First Amendment, a real law book that talks about case law but stresses some of the underlying philosophical principles that I believe run through the case law. I think that’s the way you have to do it if you’re going to influence actual decisions.
So the other question is more concerned with political philosophy and political theory. Are you optimistic about the development of liberalism? In practice, but also after all these debates about the right and the good, and the need to supplement liberalism with some conception of the good. I take your work on the capabilities approach and the discussions about the Aristotelian element to point in that direction. Do you think that theories of liberalism have learned from this? With globalization, there’s a lot of what in Greece we call neo-liberalism – though I don’t know whether the term is accurate, since many liberals complain that neo-liberalism is something the Left has invented. My question is: to what extent have people like you, who really discuss the need to go beyond the austere old liberal framework, really succeeded in influencing people, including politicians, in practice. And of course, there are other people who question the republican model, which is something different, moving in a different direction.
Well, there are many different ways in which a kind of quasi-Aristotelian theory of the good has entered into what we might call liberal political theory; after all it didn’t start with me. It started long ago, for example in England with T. H. Green and Ernest Barker, who were perfectionist socialists. They used the Aristotelian notion of human functioning to argue in favour of compulsory education. They were an important and a clear precedent for my position. In fact, I didn’t read them until much later, but anyway I now see that they were important and a precedent; their form of liberalism was very comprehensive, it was closer to something like Joseph Raz’s view today. I would call that a form of comprehensive liberalism, because a notion of autonomy is used across the board to talk about lives that are well lived and so on. I think the political form of liberalism, in which we don’t advocate a comprehensive doctrine of autonomy but rather certain ethical principles for the political realm, is more defensible in a world in which, for example, we have religions that don’t think autonomy is a particularly great good. We don’t show respect for them if we say that only autonomous lives are worthwhile. But as to the political form of liberalism, my own view is that we can defend it best if we use the idea of capabilities as our political goal, rather than thinking of the good in terms of income and wealth alone.
I think that that sort of view has received a lot of attention. Particularly through the Human Development Reports of the United Nations Development Programme, capabilities are popping up all over the place. Of course, they don’t bring in the whole of my political theory, they’re just using the notion of capabilities comparatively to compare wellbeing in different countries. Nonetheless, you now see that pretty much every country in the world is talking the language of capabilities and making some measurements of their populations in that way. In India there’s not just a national Human Development Report, but each state has its own Human Development Report. So, this language is now very widespread. I think it’s important to not just have that comparative measure but to say there are certain fundamental entitlements based on the notion of capability available to all citizens.
So that takes us to the next step of thinking about constitution making: what should a constitution guarantee and how can that be implemented? But again, I think that when people are thinking about constitution making they’re aware of these ideas; constitutions such as those of India and South Africa have very similar ideas, no matter what they’re influenced by. So yes, I do think that these ideas about human functioning and human flourishing are actually quite widespread. And surely were widespread before I was born: a student has told me that the Social Democratic Party in Japan was founded by a pupil of Barker who brought Aristotelian ideas of human functioning to Japan and used them as the basis for a social democratic conception. I actually believe that Sen’s idea of capability had such an origin, because Indians studied in Oxford, and Green and Barker taught many generations of leaders from the developing world. And I think the kind of humanist Marxism in the various Indian Marxist parties in which Sen grew up was also influenced by a kind of Marxian version of Aristotelian idea – which are very prominent, for example, in the Economic and Philosophical Manuscripts of 1844. Wherever the ideas come from, I think the important thing is now that they do enrich the debate within liberalism and I think they should be defended in a way that’s still recognizably liberal. By that I mean with an emphasis on the idea that each person is the ultimate beneficiary, not large groups of people, not even families, but each person seen as an equal of every other person. And I also think that it’s a hallmark of liberalism that ideas of choice and freedom are really very, very important. Of course I think one has to stress that we don’t have choice if people are just left to their own devices. The state has to act positively to create the conditions for choice. I think the libertarian position is actually quite incoherent, because there is no such thing as absence of state action. Even to defend contract and property rights, and the rule of law itself, the state must take positive action.
Are you talking about so-called negative rights?
Yes. If you go out into the rural areas of Bihar in India, then you see what “negative liberty” comes to. Total chaos, where nothing is being done, where there no roads, no clean water supply, no electricity, and therefore where no one can do anything, no one has anything. I am sure my colleague Richard Epstein will agree, up to a point, that a state that’s going to create liberty has got to act, has at least got to protect property rights and contracts and have a police force and a fire department. But then why draw the line at that? Why not also say that the State has to create public education, has to create the systems of social welfare that makes it possible for people to access health care, unemployment benefits, and so on? So I don’t see any principled way of dividing those different spheres of state action. I talk to these libertarians often, and I think the debate really comes down to the question of what’s the best strategy for promoting the human capabilities. Richard Epstein actually has said to me “you know, your list of capabilities I agree with it totally, we differ only about the means. I think that private industry should be the largest agent in promoting this and you think that the state should be”. I have no objection to saying that the State could sometimes delegate part of its function to the private sphere when it judges that that’s sufficient, but I do want to say that the State is the one that bears the final responsibility. The State is a system for the allocation of human basic entitlements. Its job is to promote justice and wellbeing for human beings; if it’s simply delegated to private industry and that doesn’t work, then the State hasn’t done its job.
Now if I may ask you about your work on the novel, I mean literature, your work related to philosophy and literature. Do you feel that your line of ethical criticism or of using literature for ethical philosophy has succeeded in moving people towards this direction? And is the fashion for deconstruction and for very post-modern approaches somehow losing its force today? Am I right in this perception or am I being too optimistic?
I think you are right. I am on the board of the School of Criticism and Theory, which is the leading, cutting edge literary theory organization in the US. When I taught in their Summer School at Cornell a few years ago I was struck by the fact that all the students were interested in law and ethics. And so were the people that founded some of these deconstruction movements. Jonathan Culler gave a lecture in which I didn’t hear anything about post-modernism. It was actually mostly New Criticism, but it had an ethical element as well. I think English Departments always have problems in America, because they always feel they have to have a gimmick. Because English used not to be an academic subject – in England it was always something you were expected to know because it was your language; when you went to university you studied classics. Because English has to defend itself against people who say it’s not a proper academic subject, it’s prone to fads. I think we’re not at the end of the fads, there’ll probably be some other fad that will be again rather annoying and we’ll have to fight against that one. But at present, at least, I think the post-modern one is on the way out. Whether ethics in its serious sense will become central in English departments I am not sure, because I think very few literary scholars have the patience to do the sustained hard philosophical work that’s needed. Whenever they talk about philosophy, with the exception of Wayne Booth, for example, they’ll talk about it in a way that seems to me quite embarrassing and amateurish. So I feel uncertain whether in English departments we are going to get revealing first-rate work of an ethical sort. But certainly through philosophy it’s happening.
Now in philosophy there’s always a problem, which is that many philosophers have a background that’s more scientific; they don’t read novels much. So you can get departments, often very good departments, where people would make fun of a literary inquiry, or think that it was not proper philosophy. In my own department, fortunately, it’s not that way at all. Many people would want, for example, to teach a course on Proust. One time I found I was offering a course on Proust and somebody else was also planning to offer one. In this very tiny Department of fifteen people, there were going to be two courses on Proust and no course on a major topic in recognized moral and political philosophy. So I dropped my course on Proust and I did my course on John Stuart Mill. But you know, we all agree, and if somebody wants to do a dissertation on Proust or Henry James we are very happy. I see more and more dissertations that have a literary element. If I am advising such a student, I’ll urge them not to do the whole thing on that. If, for example, they’re going to write about Iris Murdoch’s novels, it would be good to have some chapters that are about topics of virtue that are more mainstream. My friends in Finland organized an international conference on philosophy and literature two years ago – because in Finland philosophy is very narrow and very focused on logic and technical issues of philosophy of science, and young people who are interested in philosophy of literature and literature and ethics felt isolated. So we thought: all right, we’ll bring in some of the interesting people in Europe and North America who work on this and we’ll show them what a lively field of philosophy it is, and show their professors too. I think it worked really well and that there was great interest in this subject. Of course, the logicians didn’t come. We can always expect it will be so. But nonetheless, it gave some encouragement to the younger people. So I think now it’s a much more open field than it was when I was a graduate student, when you couldn’t even write a dissertation on Aristotle’s views about friendship because people would make fun of you. They would say it was too soft or something. When I wrote about tragedy, my advisor said “Oh well, for that you have to find a supervisor in the Classics Department”. And I really thought no, because it is a philosophical subject I have here. It was only when Bernard Williams showed up and understood that, that I gained a sense of permission to do it and to do it within philosophy – and I am always enormously grateful to Bernard Williams for that. But I think now things are different and that there are many people whom one could turn to for encouragement.
And this goes along with overcoming the analytic-continental divide?
Yes, absolutely, no longer would we think that if you worked on literature or other topics in aesthetics you’re non-analytic. And you wouldn’t have to do it in a kind of narrow pseudo-analytic way focused on meaning or language either. So yes, it’s a better time. When I was in graduate school, aesthetics tended to focus almost exclusively on visual art. So the greats of that era, Arthur Danto, Richard Wollheim, Nelson Goodman, were really talking about painting. No one was talking about music; only Stanley Cavell was talking about literature. But now that’s changed, everyone is broader now.
And one final question about feminism, a more philosophical question. I have always felt that you have a critical attitude towards the more extreme feminist views. I think of people like Andrea Dworkin and to some extent Catharine MacKinnon. To what extent has your intervention influenced this sort of more radical feminist? Have things changed do you think, have things become more balanced today?
My view about MacKinnon and Dworkin is extremely positive, as I’ve said both in Sex and Social Justice and in Hiding From Humanity. I think that both are great and I have great enthusiasm for their views. I don’t agree with absolutely everything.
You tend to be more universal, more ecumenical…
MacKinnon thinks that she is an opponent of liberalism. And she thinks that, because when she went to graduate school liberalism was very underdeveloped and wasn’t thinking about women’s issues at all. Especially in law, liberalism was just talking about how all principles should be neutral, and so she thought that it makes no room for affirmative action. For example, there were insurance companies that did not give pregnancy benefits and legal liberals argued that this was OK, there is no sex discrimination here, because all non-pregnant persons, both male and female, are going to get the benefits. And she thought that this was ridiculous and of course it was. But that sort of obtuseness is not entailed by liberalism. She had never studied Rawls, she had never studied Dworkin, she had never studied any of the really theoretical works that think that there’s a Kantian idea of human equality and human dignity at the bottom of liberalism. She’s stressed that she had studied Mill, and she thought Mill was great, you know she is my colleague so I talk to her all the time. So she really objected to a kind of neutralism that was very influential in the legal realm, that made affirmative action for women impossible and refused to take seriously these differences of power. But of course Rawls never had that failing.
My primary difference with MacKinnon is that she is reluctant to express any universal norms or ideals. I think the reason for this is her Marxist background, because she thinks we first have to have the revolution and then once the revolution has taken place, women themselves will say what they want to say. She thinks it’s too dictatorial to announce ahead of time what the norms are. However, in her writings there’s a very obvious normative structure. There are ideas of dignity and equality. Andrea Dworkin is actually explicit about this, and in fact MacKinnon will say “Oh yes, that’s the humanism in Andrea that I always find so unfortunate.” She herself will admit that Andrea is sort of on my side in this debate. But I think she herself is, when you philosophically reconstruct her views. I don’t think you can do it without employing normative notions; to the extent that she does avoid them it just means that her own ideas are underdeveloped and that there’s not enough of a principled structure. I think that her views about sexual harassment are very, very important. Her emphasis on differences of power in the workplace is extremely important, as is her idea that what we have to look at is not just sameness or difference of treatment but the underlying structures of power. I think it’s a liberal idea. I differ with some of her specific claims about pornography. But I don’t actually think that’s so central.
What do you think of Andrea Dworkin’s book Intercourse?
MN: Oh, I think Intercourse is a great book, I teach it all the time, but it’s not about pornography. Andrea Dworkin is a fiction writer really. She’s not a philosopher, so she doesn’t always write with a great deal of definitional precision. I wrote a piece which is in “Sex and Social Justice” about philosophers and prophets in which I contrasted myself with her with some kind of unease, because I think philosophers don’t want to move to the next step until they patiently make the right distinctions. Whereas I think Dworkin is a prophet. Her mentor was Frederick Douglass, she wants to get out there and denounce an evil. And like Frederick Douglass, the great abolitionist, she doesn’t always define her terms precisely. So what I think she really is doing in Intercourse is saying that it’s not just this or that evil offender that we need to be worried about, it is social norms themselves. When men use force against women, it’s not enough to say: oh well that was a bad guy, or: that was a pervert, but that the problem is intrinsic to some of our social norms. Men think they have a right to use force in certain circumstances, when they’ve paid for the woman and they’ve got drunk and so on. Actually sociological evidence shows this. Edward Laumann, who is the greatest sociologist of American sexual behaviour, in his large tome called The Social Organization of Sexuality, said that the biggest problem that emerged from his careful survey of American sexual behaviour was a tremendous discrepancy between men’s perception of what is force in the sexual situation and women’s. Men simply don’t believe that they’re using force if the woman is drunk and they just go right ahead. And then the woman does think that that was force. So I think we made progress in having a social dialogue about that. But when Andrea Dworkin wrote, we hadn’t had that dialogue yet. Still in some states in America, we haven’t had it. Here is one case that was decided in Illinois quite recently. A woman who weighed 95 pounds was riding her bicycle in a forest preserve. A man who weighed 200 pounds came up to her and said: “Will you come with me into the forest? My girlfriend doesn’t satisfy my needs”. There is no one around, and he just picks her up off the bicycle and without struggling or fighting she goes along with his sexual demands in the woods. He was first convicted of rape, but the high court threw out the conviction saying she hadn’t struggled to the utmost. You see, she was alone; she probably would have died if she had struggled! That’s the kind of thing Andrea Dworkin is talking about. And the best criminal lawyers are very inspired by her and try to rewrite rape law and try to make it more adequate.
I think MacKinnon and Dworkin have made great contributions. MacKinnon happens to be a very good friend of mine by now also, but she is a great thinker I believe. I think MacKinnon is misunderstood as being a man-hater and that seems to me quite wrong. It’s not as if she hasn’t got some of the blame to bear for that because her writings are not systematic works. They’re public speeches that she delivered in the heat of the moment that were recorded and then published. If my only works were my recorded interviews I would probably be misunderstood. But she should have written a more patient philosophical book. A Feminist Theory of the State is not really that book, because it was her dissertation. It does not answer the questions that philosophers raise about her views. Her new book on international law and women’s human rights is in some ways her best, because its conceptual clarity is very evident.
The ones I don’t think are so very helpful are the post-modernist feminists like Judith Butler whom I have criticized very strongly. I think that her refusal to advocate any norms and her advocacy of parodic acts of resistance is a turning away from the task of real social struggle in which we used to be engaged. And when I see academic feminists saying: well we can write these elegant papers in a jargon which parody the norms, I want to know where the feminist struggle that we had is. Laws and institutions haven’t changed enough, so we should have a lot more solidarity with women who are working to change them, and we should theorize in a way that is helpful to that struggle. So that’s my complaint against the Butler group.
And then the Carol Gilligan group: I think their work is not so good and I think it provides a handy rationale for the exploitation of women as caregivers. So I am very critical of those two groups.
Thank you very much.
Published 5 January 2007
Original in English
First published by Cogito (Greece) 5/2006
Contributed by Cogito (Greece) © Martha Nussbaum, Stelios Virvidakis / Cogito (Greece) / EurozinePDF/PRINT
Liberal feminism has completely overlooked class and other axes of inequality and subjugation, says Metka Mencin Čeplak, as the economically and politically imposed commodification of women comes to the fore, warns Mirjana Ule. What is to be done? In interview, two leading Slovenian feminists consider the options in light of a century of feminist thought.