Nussbaum on thin ice

After having read well into Martha Nussbaum’s “Frontiers of Justice” and having covered chapter V: “Capabilities Across National Boundaries”, it is time to return to some of the questions that were raised in our discussions in the Dean’s Master class as well as on the corresponding web blog. From the start, general curiosity went out as to how Nussbaum would attempt to extend and modify Rawlsian contractarianism to truly create a global theory of justice that exceeds the nation state. Barend de Rooij raised one fundamental question - from across the North Atlantic pond on his exchange at Rutgers University - about Nussbaum’s use of a shared intuition as the base of her theory. He posed whether “intuitions, even intuitions that are shared by many,  [are] really a strong enough foundation on which to base theories of justice?” (see web post from the 3rd of December 2012). This is a question that underscores some of the most questionable aspects of Nussbaum’s inquiry and extends to questions about universality and practicality that particularly come to mind with this specific chapter.

In the book Nussbaum intends to maintain a purely philosophical inquiry that shapes public policy at heart. Her duty, as she sees it, is to provide a sound theoretical foundation for the practical aspirations that she puts forward. In the last paragraph of the chapter she states that “these principles [Ten Principles for the Global Structure], together with the theoretical analysis that supports them, are at least a sign of what the capabilities approach can offer as we move from goals and entitlements to the construction of a decent global society.” (Nussbaum P324) In the respective chapter she has thus tried to set out a philosophical framework with highly practical implications. My idea is that in her attempt to create a clean-shaven philosophy (as we might call it) but simultaneously with the purpose to create practical changes in the world that she has already in mind prior to her investigation, she is trying to build a bridge over troubled water (Simon and Garfunkel). That is, she is making enthusiastic steps on very thin ice, leading her to create a rather incoherent theory that has questionable premises.

Image: Nussbaum attempts to pursue  “clean shaven” philosophical inquiry – (drawing by Bart Lutters)

One of these premises is her usage of human dignity and our intuitive association with this concept. Nussbaum regards that humans share a dignity regardless of place and that certain minimum needs are to be met if we do not want to undermine this dignity (Nussbaum P274). In this view of dignity she has transformed it directly into a global concept, without having made assumptions about the content of what then are the minimum aspects of human life that we need to fulfill in order to live in dignity. In her definition of social cooperation, this becomes somewhat more substantive, as she puts the capabilities approach at the heart of the matter. Continuing on she states that “the idea of what human beings need for fully human living is among the most vivid intuitive ideas we share.” (Nussbaum P279). However, she leaves the definition of what dignity entails rather vague. In this chapter she invokes and high lights an intuitive empathy with the idea of human dignity. Every reader (at least if they have not become too skeptical) will probably relate one way or another to the idea of dignity. So to the extent that the idea of dignity is perhaps something we intuitively share she might be right, but to what extent do we share the same conception of dignity? A conception of dignity is possibly present in every culture or group of people, but the conception of dignity might differ greatly. This is where it becomes problematic. Nussbaum argues for a universal theory that, if it is to become a goal we strive for, needs the agreement of many. Yet, would this agreement then not be based on potentially highly varied (practical) conceptions of dignity? Is this then at all possible? These questions and critiques make me doubt the strength of such a foundation for her theory.

Perhaps I am trying to challenge Nussbaum’s for no reason. After all, she does not want to impose a global normative doctrine, but rather transform policymaking and the international arena towards focusing on achieving the capabilities for all. She has a strong appreciation for state sovereignty, but argues that “the capabilities approach insists that certain core entitlements should be part of domestic constitutions worldwide.” (Nussbaum, P314) She continues that there should be a lot of room for interpretation in order to protect political freedom and pluralism. Although I appreciate her point, again she seems to be standing on thin ice. On a practical note, the mentioning of certain rights in a constitution does not mean by far that these are actually becoming reality. More importantly, she seems to fundamentally contradict herself by giving a requirement of the state whilst simultaneously advocating sovereignty. It seems as if she is trying to avoid this confrontation by remaining vague about which core entitlements these concern. Furthermore, on the one hand she proposes that all individuals hand over their duty to institutional structures and for the provision of entitlements and on the other hand argues for the nation state to providing these. Again she remains vague about what exactly she envisions these “institutional structures” to be. If they involve national structures, she is not as paradoxical, but she also strongly advocates international institutions such as the United Nations, international treaties and NGO’s. It thus remains unclear how the capabilities approach and its practical implementation can embrace pluralism and state sovereignty while also putting certain requirements on the nation state and have a responsibility for the implementation at (international) institutional structures.

The discussion above by no means touches even close to all dimensions of Nussbaum’s inquiry, be they problematic or not. What does become clear from the debate is that regardless of the fact that Nussbaum tries to stay away from making practical implications; she is somewhere stuck in between the philosophical and practical realm. As said before, I think that one of the issues that do not allow her to make a clean-shaven philosophical inquiry is that she has already set out her goal before she starts her inquiry. She therefore tries to pave the path from point A to a predetermined part B, which requires her to take a couple of questionable turns. Her inquiry is definitely creative, but has too many sides that make it problematic to just take as a piece of creative writing. Another question that thus pops up is whether and to what extent she than misuses (not necessarily intentionally) little bits of theory from Rawls, Grotius etc. in order to persuade the reader. As a final note of this web post, this is the question I would like to ask to the reader.

By Laura Brouwer (Second year student, LUC The Hague)