Well, here We go – the fourth in the series on Martha Nussbaum’s 2007 Harvard Law Review article (94 pages), entitled “Constitutions and Capabilities: ‘Perception’ Against Lofty Formalism”. The link to the text of her article is here.
As with all texts that are available in Adobe, there are two sets of page numbers: the page number assigned by the Adobe browser, and the actual page number of the document as it was written. In this case there is a 3 page difference, so when I make a reference to the text of the article it will look like this: page 13-16. The first number is the Adobe browser pagination, and the second is the actual text’s pagination.
Having finished her Introduction, Nussbaum moves on to “Philosophical Elements”. (7-10) Here she is going to assemble the various bits of philosophical insight she has selectively lifted from here and there going all the way back to the beginning of Western thought; she will re-assemble them, re-weaving them into a fabric that can be made to cover her CA vision with the appearances of ancient and long-established wisdom.
She starts off with a hallowed insight of Western thought (that patriarchal and oppressive tradition, you will recall) which will then lead to a useful give-away: “At the heart of the CA”, she intones, “is an idea that it borrows from and shares with most of the world’s great religious traditions: the idea that all human beings are precious, deserving of respect and support, and that the worth of all human beings is equal”. (7-10)
This is a decent-enough rendering of that profound conceptualization, although with a tweak (and in Nussbaum you always have to watch the tweaks).
All human beings are indeed precious. In the Judeo-Christian tradition this belief would be based in the action of the Creator-God, endowing each human being with a soul, a spiritual element joined to the material and corporeal, Spirit within Matter. Since this soul was created by God and infused – unique to every person – within every human being, then such a belief became a universally reliable Ground for the dignity of each human being and for the entire human species.
Moreover, this Ground was beyond the power of mere humans or their governments to change or abolish. It constituted a Higher Reality, you could say, and thus there was a Higher Law – higher than any merely human-made or government law – to which all humans (and their governments) were subject.
The Framers, living in the Enlightenment, were able to take advantage of a unique Moment in human history: the power of human Reason was growing, reinforced by the beginning of the Scientific and even the Industrial Revolutions, and after the wracking religious wars of the 16th and 17th centuries in Europe, there was a disenchantment with ‘religion’ in the West. But the afterglow of the great Catholic synthesis – developing the universal Ground of human dignity – was still strong, and people still thought in terms of an undeniable and “self-evident” universal Ground. And of “inalienable rights” – inalienable by any human authority precisely because they came – in the pre-Enlightenment past – from a Divine Authority.
(So, curiously, you’re going to see that in trying to create MORE space for ‘rights’ to operate in the post-World War 2 world, the ‘rights’ groups have actually and literally cut the ground out from beneath the authority and legitimacy of rights: instead of coming from God or from Beyond – where they can’t be tampered with – they are now merely the creatures of sovereign governments – where they must lead a much more fragile existence; because what the government giveth, it can also take away, and where it expands, it can also revoke … funny how the philosophical night moves.)
But the Greeks, long before the great Grounding of the Christian synthesis, had sought to establish this ‘given’ without recourse to religious and theological belief’ – their ‘gods’ were a pretty human bunch, capricious and self-involved, compared to the benevolent God of Justice and Love of the Judeo-Christian vision.
Instead, after careful examination, the Greeks chose the human ability to ‘reason’ as being the unique and awesome capacity that distinguishes humans from all the other beings on the planet. Plato sensed that this power came from some higher and more perfect realm, an Ideal realm* - although there was no loving or just God there.
For centuries in the West, governments, as well as individual humans and their societies, had – in theory at least – to respect the Grounded dignity of the human being. Either they accepted the overtly religious (and spiritual, not quite the same thing) Ground of that dignity, or they had their cake and ate it too by claiming that such a Ground existed in human Reason rather than in the God-sourced ‘soul’.
The kicker there is that with the spiritual or ‘Beyond’ source, a source that is actually a Who, namely God, even governments could not mess with that human dignity. God was literally Beyond the power of governments to command, and had a reputation for punishing those governments as well as individuals who transgressed against the dignity of His beloved human creatures.
But no doubt, trying to figure out even God’s plan and Will is a bit of a job for humans: it’s like Martians trying to figure out humans simply from examining an abandoned spaceship or, say, automobile.
And once the ‘game’ was shifted entirely to this dimension and this world – that human dignity was Grounded not in a God but in human Reasoning – then that opened the door for any humans, and any governments, to come up with their own conceptions and their own visions as to human dignity.
And as governments in the West became more powerful and centralized through the 19th century’s Industrial Revolution and then the wars of the 19th and 20th centuries, then the question became one of a government beginning to act as if it alone were the source of human dignity. Or at least that since government was the most powerful source of authority in a given society or culture or polity, then government got to say what constituted human dignity and could make whatever laws it saw fit to Shape its culture, society, and civilization. But let’s not get ahead of Nussbaum here.
And you can see here where the Feds have perhaps been thoroughly soused with this ‘cutting edge legal theory’ that it is the Federal government, and NOT the Constitution or any visions and convictions that constitute the Framers’ Constitutional ethos, that is the source of whatever rights Citizens have.
Things have gotten to this point in a curious way: I think that 40 years ago the Big Thing was for the Feds to use their authority to expand rights (and surely that is what Nussbaum is trying to do here). BUT somehow – as is the way of things in this world – by admitting that the Feds could do a lot of expanding, it became possible that they could also use that power they theoretically had in order to reduce rights.
And once you have opened up that watertight door, then you risk a flood of Federal reductions in rights, again stemming from the theoretical presumption that rights come not from God nor are they “self-evident” (since the whole Constitution was put together by oppressive patriarchs who saw only what they wanted to see and so their Constitutional vision was ‘tainted’).
But this is precisely where she’s headed: “The tradition from which the U.S. Constitution emerged placed large constraints on government, to be sure, but the tradition was hardly willing to deny a substantial role for government, or even to minimize its presence.” (7-10)
You can sense that while she accepts – at this point in this article of hers – that the American Constitutional tradition is fundamentally concerned with limiting government, it still has – in her terms – “a substantial role”; and that not even the Constitutional tradition was willing – in her suspiciously vague though innocent-sounding phrase – “to minimize its presence”.
She’s heading for open water here, her vision unbounded and hugely expanded over the original Founding vision. Government will play a huge role, perhaps the key role, in her vision.
This is part of a conceptual fight that has been going on since the American Founding. Shortly thereafter, the English philosopher Jeremy Bentham pretty much said the whole thing was baloney: if a ‘right’ were not embodied in actual legislation and law, then it was just so much sentimental claptrap. The Americans, therefore, thought Bentham, were simply being emotional and unserious with their pious assertions about “self-evident” and “inalienable” “natural rights” in their Declaration of Independence; a ‘right’ is nothing if it is not guaranteed by a government and, more specifically, by actual legislation from that government.
It’s a nice thought – but if you think about it for a minute, it leaves the door wide open for assuming the equation If no government and legislation, then no rights. BUT once you’ve gone down THAT road, you’ve opened up the possibility of somebody claiming that ‘logically’, Rights come from Government and laws … and not from anywhere else in this world or the Next.
And this Flattens human existence into this (so imperfect) dimension and deprives humanity of the Accompaniment of that Western, Judeo-Christian God envisioned in the great Medieval synthesis.
And it offers ‘limited governments’ the seductive opportunity to exercise god-like levels of power and intrude into the most minute levels of American societal and individual life; which is precisely what the Framers chose to avoid.
And when during WW2 FDR and Eleanor both pushed for a “Second Bill of Rights”, the Constitutional rights of 1787 started to be thought of as ‘first-generation rights’, and now the postwar West would improve upon them – by using, of course, ‘modern’ government power to enforce them and Shape societies and Citizenries to accept them as ‘the new normal’. Not an inherently evil idea, but it doesn’t take much pause to realize just how many ways such a project could go verrrrry wrong verrrrry quickly, human governments being what they are.
But – as you may well imagine – all of this was pure catnip to the assorted Revolutions and Identities of America in the late-1960s; they had read wayyyyy too much in Lenin and Mao (Goebbels they didn’t read as such; he and his boss were just ‘in the air’ all over the West after the war) and they blended this new fungibility (not to say mushiness) in rights-theory with the concepts of a revolutionary vanguard elite (Lenin’s idea; those who ‘get it’) and the Leninist-Maoist idea that ‘the masses’ can’t be trusted (they just don’t get it, doncha know?) and so the Great Good Thing must be imposed upon them by those who know better.
In this regard there are two points I see as significant.
First, having ‘deconstructed’ not only the Beyond-dimension in which the Judeo-Christian Grounded human dignity, but also the Founding vision of the Constitution (especially a government limited in what it can do to Shape the lives of individual Citizens and the life of American society and culture), the ‘Revolutions’ that have been embraced by the Beltway since the late-1960s are now the only Source (not to say Ground) of human dignity and rights: the government can give and take away (just as it did with the South in the first era of the Civil Rights movement).
Second, spear-headed by the Feminist Revolution – supported by the theories of Deconstruction** and Multiculturalism*** - all traditional sources of authority in society and culture are instantly reduced to just ‘opinions’, and probably ‘quaint’ and ‘defective’ and ‘insufficient’ opinions to boot. Thus everything – at even the most fundamental level of societal and national life – is up for grabs, up for ‘reform’.
And when this is applied to Constitutional theory (and Constitutional law) you can quickly see where things can go. And have gone, in many ways. So when Nussbaum is writing here, she’s not just theorizing in some private or academic way; she is putting out a blueprint for where the political and Constitutional ethos of the nation have to go.
And now there are generations of legal professionals and other ‘elites’ who have been trained in all this. And a sensationalist and shallow journalism that can’t or won’t grasp its significance.
She then makes what I find is one of her most impressive moves, yet also one of the most dangerous.
She rejects the ancient Stoic view that a human being is most importantly a private individual being, whose greatest challenge in life is to develop his/her own interior gifts and – in a non-religious sense – the interior ‘spiritual’ life. (8-11)
The Stoics, unimpressed with the wrack and imperfection of the human dimension and this imperfect world of human affairs, chose instead to locate the great drama and struggle (‘agon’ is the Greek word) within the person of each human being. Without holding out much hope of a life-beyond-death (the Christian insights of redemption and heaven didn’t come to flower until late in the Stoic period – and helped end it), the Stoics still felt that the true dignity of the human being lies in mastering or perfecting – to the extent humanly possible – the interior life, ‘character’ you might say.
Nussbaum, reflecting nicely and respectably the modern Western urge to improve the living conditions for humans in this world, rejects that approach. For the modern approach, especially as it has been developing in the West here for 40 years, the great locus and site of the human drama is not within the individual but rather in conforming the ‘surround’ of the individual, the ‘world’ or the society and culture around the individual, the ‘ethos’ or the ‘milieu’ … in actively and aggressively shaping all of that to expand the individual’s opportunities in this world. (There is no reliable ‘next world’ in the modern view, don’t forget; it’s either a ‘private’ matter or perhaps even doesn’t exist at all except as a sustaining and consoling fantasy for the weak-hearted.)
Human gifts, she says – and not unreasonably – rely for their nurture and development (like so many feminists, she considers ‘mastery’ a ‘masculine’ concept and doesn’t use it often) on the conditions imposed by the world surrounding the individual.
And it is that ‘world’, that society or culture or ‘milieu’ or ‘ethos’ that will determine to great extent the chances any individual (especially those who are minority or oppressed) might have to deploy whatever gifts and strengths s/he has to begin with.
So the focus is not within the human but external to the individual. And rather than being an active agent of interior self-mastery, the individual is seen as the passive recipient (not to say 'victim') of exterior forces.
(You can see an example of this in, say, efforts to make the world more hospitable to the wheel-chair bound: since lack of transportation and widespread (perhaps natural) human predispositions to value ‘abled’ over ‘disabled’ persons, then a person bound to a wheel-chair faces vast challenges and obstructions to any self-realization or ‘success’, far more than the ‘abled’. Hence the move towards trying to remove both the physical obstructions – curbstones on sidewalks, public transport – while simultaneously re-shaping (through government action) public perceptions and predispositions toward the wheel-chair bound.
This is a well-intentioned and hardly unworthy plan. But given that the wheel-chair bound constitute a very small percentage (less than 5%) of those legally classifiable as ‘disabled’, and that aggressively changing human perceptions is a hefty and invasive piece of work, and that it is the government that is doing it … you can get a sense of where valid and worthy insights and intentions can lead to all sorts of complications, especially in the American arrangement whereby ‘government’ is limited.)
But Nussbaum represents as well a ‘de-valuing’ of the ancient Stoic priorities of ‘character’ and ‘mastery of self’ and ‘excellence achieved’ … nor am I saying that she herself intends this.
(Although there is this strong ‘external’ emphasis in the Feminist Revolution as it has evolved, downplaying all of the ‘interior’ ‘virtues’ around which Western children were once gathered like vines around a complex trellis, to Shape their growth so that they didn’t simply dissipate their energies growing wildly along the ground like kudzu … there is in all of this a rejection of the Garden and an embrace of the Jungle – so to speak – that was evident as early as the Boomers and perhaps, going further back, to the generation of the 1920s and, in Europe just before World War 1 ‘les Fauves’ – the free-spirit and self-styled ‘Savages’ who rejected ‘civilization’ and ‘manners’ as being artificial restraints upon the essential (as they saw it)’wildness’ of the human spirit.)
It makes no difference here whether Nussbaum herself intends this or even whether the Feminist Revolution deliberately intends this (although there is a lot suggesting that the Revolution does). The important fact is that this thrust is implicit in Nussbaum’s vision and if that vision is implemented then this thrust will be implemented along with it, will reveal itself in consequences intended or unintended.
The great and almost unperceived deep-danger here is that in so strongly ‘valorizing’ the ‘external’ there will be a ‘de-valorizing’ of the ‘interior’ – the interior life of the human spirit, of the human struggle for self-mastery and for ‘character’ and for ‘achievement’ and for ‘excellence’.****
And yet Nussbaum’s motivating or initial insight is valid and attractive, and even compelling: persons coming into the world, endowed with such potentials as they have although each is possessed of the dignity of human being, will not be able to even get to first base or even up to the batter’s box if their surrounding world does not allow them to develop their gifts. (The baseball imagery is mine, not Nussbaum’s.)
The huge question – which should become a major element in the nation’s public discourse – must be to figure how the nation (and NOT just ‘the government’) can make best use of these insights without wrecking the Constitutional gift which is – among the governments and governing-systems of the world – one of the greatest enabling gifts that humanity has ever received.
*The Platonic thread never ceases to be interesting. Imagine a ‘cup’: no matter of what it is made or how it is decorated or how it is shaped, there is something about a ‘cup’ that humans can identify as a ‘cup’ – as opposed, say, to a bucket or a spoon or a boot being used to convey drinking water. So, said Plato, there is a certain ‘cup-ness’ that every actual cup shares with all other cups in the world. And thus, he went on, there must be an ideal Cup, that exists in a dimension where all the Ideal forms of everything exist, since every inanimate thing or animate being had an Ideal form of which it was a particular example or instance.
Simple but gripping.
And then apply Plato – as he did – to human beings: that there exists somewhere the Ideal Form of a human being, and that all individual human beings are instances of that Ideal Form, each in his or her own way.
See where that takes you.
There are ethical implications: must not each human work with the responsibility to develop him/herself according to that Ideal?
And there are political implications: governments must be judged by how well or ill their laws help or hinder the human responsibility to conform to or develop according to the Ideal.
And there is the inevitable question: what about humans who do not or are not able to develop according to the Ideal? And is there such a thing as a human who is unable (rather than unwilling) to shape his/her life according to the Ideal?
Jefferson talked of a ‘natural aristocracy’ of those born with gifts or the burning desire or character (is that itself a gift rather than an achievement?) to enable them to live ‘in the Ideal’ at a level more advanced than the ‘average’ human.
With these issues you are now getting into the territory that Nussbaum, building on Rawls and Amartya Sen, is operating in.
**Originally a literary theory that saw the ‘authority’ of a ‘text’ as being ephemeral, and upheld instead not the vision of the author of a text, but rather the right of any subsequent reader of that text to make of it what s/he thought best. This rejection of the ‘authority’ of any tradition or original intention of an author – and you can see why – quickly became translated into the political realm, where it could serve as a theoretical underpinning for rejecting any ‘tradition’ or ‘authority’ in the service of letting the ‘reader-individual’ do whatever s/he thought best. You can see where that leads.
***Multiculturalism essentially holds that no culture deserves to have ‘primacy’ in a country, and that every country’s ‘majority’ culture must be watered-down or limited in such a way that all other ‘minority’ cultures get an equal shot at Shaping – or at least keeping their own – civic and civil ‘space’.
It has been deployed in (I would say ‘against’) American traditional culture and society for 40 years; to the point where a new immigrant today – unlike in the earlier eras of immigration – would be advised by the Multiculturalist precisely NOT TO assimilate into American culture, but rather to keep his or her own.
One curious result of this is the Multiculturalist insistence that fresh immigrants must be continually brought in exactly to prevent any trending toward ‘assimilation’ on the part of other immigrants who have been here long enough to yield to the inertia of ‘assimilating’ into the national culture.
****You can see this is something as seemingly inconsequential as the now-classic San Francisco children’s league softball teams where ‘score’ isn’t kept for fear that the ‘losers’ will lose ‘self-esteem’ and the ‘winners’ will merely think they are better than the losers. But when this is applied to – say – the military, and to the training of generations of officers in the Service Academies … you can see where all this can quickly go.