SERIES ON NUSSBAUM 5

Well, here We go – the fifth 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.

The Stoic approach to life basically withdrew the human person into her/her own interior self, ‘retreating’ from the world in the ancient classic military sense of compacting your force in order to concentrate it and intensify its power.

It was the human’s interior (they wouldn’t quite say ‘spiritual’ the way We would understand it today) powers that were a) free from the decay of the outside, this-worldly forces of chaos, imperfection, and corruption; b) the truly defining powers that made a human being a human being with human dignity; c) the one area of life in this world where a human being could demonstrate sufficient independence (if s/he wished to exercise it) so as to achieve the best and the most genuine state of being possible to a human.

Nussbaum rejects the Stoic vision. For two reasons.

First, she says, those powers “are more dependent on the world than the Stoics maintained. The capacities of thought, ethical selection, and will are undermined by malnutrition, humiliation, and lack of education”. (8-11)

It’s a shrewd and accurate insight, I would say. Humans are indeed deeply intertwined with the ‘world’ around them in which they live, move and have their being. You needn’t posit a God to imagine human beings deeply and dynamically related to the bio-sphere or eco-sphere (not in the ‘Green’ sense but in the broader philosophical sense). Humans are so marvelously intertwined with the rest of the life-world that some would see a marvelousness that strongly suggests a God, but let’s not digress.

But I’d still have to say that there is also something that sets humans apart: We are not simply marvelously intertwined with the rest of the life-world like pine trees or like other mammals. There is more to it because there is more to Us: humans have self-consciousness and will power and all the other amazing things that come with the highly-complex human brain.

And humans also are capable of failing to achieve their potential – although here you get into the huge question of where such failure comes from: within the human or outside the human. And that leads to stuff like assessing responsibility for such failure and figuring out how to ‘change’ that in a human (or leave the individual as-is). And to distinguishing between failure-to-develop and committing-a-crime; and failing to respect others ... or oneself.

So in emphasizing the connection between humans and the world, downplaying the independence of their interiority, Nussbaum is heading into difficult territory. The human is simultaneously extended into the material world but also comprised of some irreducible interior dynamism; erecting a plan, especially one that you want legislated as a national Plan, that somehow ignores or inadequately deals with that interiority … is not in advisable way to proceed.

Her second objection to the Stoics is that “things outside a person’s rational and ethical faculties also matter: health, bodily integrity, the chance to have relationships with friends, family, and children, the conditions of political action, the freedom to worship in one’s own way, and the ability to live on terms of respect and equality with others”. (8-11)

Again, nicely said. But she’s expanding the view of the essential or core human capabilities – the mind and (We might say) the soul, the rational and the ethical or moral – to include a whole bunch of those other things that are certainly nice to have but aren’t traditionally established as defining the core of the human being.

The Stoics wanted to withdraw the human into the fortress or protective and impregnable castle of the self (although not Dark-Age or Medieval in their quality, the ancients had such protective fortresses and walled cities). They did that in order to protect the essence of the human – which seemed somehow to them to be immaterial – from the hurly-burly of the material world, which included many human beings who didn’t seem able or willing to live on the level of their less-material and higher capabilities.

Nussbaum, of course, is not about to admit into her vision any ‘higher’ and immaterial capabilities … they would sound too much like a ‘soul’ or an ‘essence’, and Correct dogma allows neither.

And she’s not going to let herself judge whether a person failing to live up to potential is somehow contributing to that failure through a lack of proper will power and intention.

Rather, she will call for the government to guarantee the possibility of exercising the powers to each individual; whether the individual will do his/her share, whether the individual will deliberately choose to not-develop – that’s not Nussbaum’s or the government’s right to judge.

And she’s gone and expanded the range of ‘pre-conditions’ that she considers so essential to the enjoyment of a full human life that they must be considered ‘rights’.

And she will sort of slide away from the Stoic sense of having a responsibility for ‘mastering’ one’s human powers, and slide toward a postmodern (and soooo American) sense of ‘enjoying’ one’s powers.

With the government thus not responsible for simply keeping a clear and level field for individual humans committed to working their way toward maturity, but rather responsible for providing a large laundry list of pre-conditions and assorted ‘rights’ so that everybody will ‘enjoy’ their powers.

You see the differences starting to develop here. Even as she is trying to build-on the Stoics, she’s taking things in a direction the Stoics no doubt considered, but chose to avoid. Which may be ‘progress’. But also may be making a mistake now that somebody already figured out how to avoid a couple of thousand years ago.

She quickly works in that one of the core human powers is ‘choice’ – the ability to ‘choose’. (8-11)

Well, yes. You have to decide, you have to choose, you have to judge.

But the power to ‘choose’ – which indeed is a power that is tied up with human dignity – relies on the deep and mastered deployment of the core human abilities to reason things out, which is a job of work for any individual.

And reasoning things out is itself dependent on the First Principles that define your world and your own self. It’s like a Starship in ‘Star Trek’: when it’s constructed each ship is programmed with a set of Primary Coordinates – I think they were the coordinates of Earth – upon which, for all of its service life, wherever it goes, that ship will calculate its position. You can’t just go out into deep space and the trackless universe and figure you can ‘choose’ to go in this direction for a while and then in another direction. Such a power to ‘choose’, ungrounded by any Primary Coordinates, is going to get you lost – in your own mind’s inability to keep the Big Picture and in actual fact: you won’t know where you really are … at least not in relation to your Mission or your Base or your Purpose.

Because where you ‘are’ is itself relative to your Base, as it were. Starships weren’t simply launched and sent out into space never expected to be seen again. If they were going to keep a constructive relationship with their Base, with their mission and purpose, then they had to have those Primary Coordinates. Even when they were exploring, they were doing it for a large purpose: sending the information and knowledge back to Starfleet Command and all that, where the rest of humanity would have a chance to study what you’d found out.

But of course, Nussbaum, true to her ideological First Principles (such as they are) cannot and does not admit that any human has a Purpose or Nature beyond that which – for as long as s/he cares to – s/he chooses to ‘valorize’. And anything so ‘valorized’ would not have a Capital-letter: one can Correctly embrace a purpose but one can never allow any purpose to become a Purpose because that could create a commitment (which would constrict further ‘choice’ that might be made down the road). One commits to responsibility if one wants to, when one wants to, on the terms one wants to , and for only as long as one wants to. And if not, not.

And to imagine that one had a Nature is doubly un-Correct. First, because one cannot surrender one’s ‘total autonomy’ to anything that would limit ‘choice’. Second, because if one had a Nature then that Nature might be imagined to be a common Nature – and for humans to have such a thing would constrict autonomy even more.

Radical-feminist identity politics requires that one’s ‘gender’ be the most important aspect of oneself. And if your ‘nature’ or ‘Nature’ somehow defines or shapes your ‘gender’, then you are being oppressed because you ‘total autonomy’ is being circumscribed. Any common ‘human nature’ or ‘human Nature’ is simply a ploy of patriarchal oppression.

So Nussbaum – as is the whole radical-feminist agenda – is cutting loose from any of the ‘relationships’ upon which humans are so vitally dependent: that relationship to Capital Letter words that represent the non-material high-concepts that will supply Meaning and Purpose to a human life.

In order to keep ‘choice’ as their primary focus, and a ‘choice’ that is unobstructed by anything or anybody else, then they are going to raise up ‘choice’ to Choice, or to ‘total autonomy’ … to do whatever you want.

So long as you don’t hurt anybody else, of course. But I can’t see how a bunch of ships out in space with no Prime Coordinates and no Prime Directive can avoid hurting other ships: and how can a bunch of humans retain their cohesion as a group or community if there is nothing to hold them together except the idea that they can each do whatever they want, whenever they want.

And what does ‘hurt’ mean then? It’s a much deeper concept than simply committing a legally-defined crime – even a violent one – against other humans. ‘Hurt’ is a much deeper and more complex concept (and reality) because humans are: humans are so complex and intertwined that you can ‘hurt’ them without breaking any legal laws or committing what is construed as a crime (especially of violence).

So these envisioned choice-droids that radical-feminist theory wants to turn everybody into … don’t strike me as fully human. Nor will any they have any chance of putting together and holding together a common-weal or a polity whose sinews and bonds will hold it together under pressure and challenge.

But she wants to use the Stoic idea of ‘human dignity’ but then add to it the idea of ‘human vulnerability’ (8-11): humans have great dignity, but their potentials to fully actualize or achieve that dignity are vulnerable to so many pre-conditioning conditions.

But those pre-conditioning conditions are outside the human; there is no interior struggle in this vision. Rather, in her vision the government is tasked with actively going ahead of all its human citizens like an ice-breaker and keeping the ice out of their way. Or the government is responsible for Shaping and Controlling the national life-world so that all those pre-conditions are and remain favorable to each person/citizen so that each will have “access to a life worthy of human dignity”. (8-11)

It’s an intriguing vision, and not an evil one at all. But it’s going to require a whole lotta government.

And for a long time, this huge and deep job had been assigned to … God. Not the Greek gods, who really couldn’t have cared less as a rule what happened to humans. But the Judeo-Christian God who was a person (3, perhaps) and cared a very great deal, like a parent for children.

Of course, Nussbaum is doing philosophy here, and not theology. And she is working on a political philosophy that will translate somehow – she hopes – into actual government policy and law.

But in matters human I think that – just like with Starships – you need a set of Prime Coordinates … and if you don’t want to allow them in another dimension (God, say) then you will have to assign something in this dimension to do the job.

Nussbaum wants to assign the task to ‘government’. But that is going to wreak all hell with the Founding idea of a ‘limited government’. But she and the entire radical-feminist Revolution have cast their lot with the Beltway; it is their ‘god’ for all practical (that is to say, political) purposes.

In a way they make an ‘idol’ of government the same way that the Fundamentalists of the Right do: claiming that the government speaks for God and has God’s authority and nobody can ever doubt that.

Idolatry, at this stage of Western civilization, doesn’t strike me as ‘progress’; exactly the opposite.

But you can see why they want to get rid of any rival ‘religion’ and any ‘rival’ god – like, say, God.

And Nussbaum admits it: Her Capabilities Approach “ascribes an important role to government in human life: government is charged with securing for citizens a comprehensive set of necessary conditions for a life worthy of human dignity”. (8-11)

She’s got that right. An organization exercising the role formerly ascribed to God has an ‘important’ set of Shoes to fill indeed.

Whether any earthly entity can – especially if its nature is supposed to be limited … well that’s another question entirely.

She puts her finger on an actual lack in human affairs: humans’ most important abilities – indeed their entire hope for any success and enjoyment in this world – are dependent on forces and dynamics beyond their control.

But Nussbaum wants – decently enough, certainly – to fill this lack by assuming that what an individual cannot do, a government can successfully do for him/her.

I’m not sure she’s thought this thing through.

She asserts that these human ‘capabilities’ she discerns, so vulnerable to the world, “need support from the political world”. (8-11) But she has to face it: the “political world” is the US government, the Beltway, an earthly government composed of humans, and probably not Deputized by God to exercise his full authority. And currently running verrrry short of cash, which will be needed to fund the knowledge-and-service society (which will never be able to pay for itself), and now the Capability society as well.

But, she continues, “the political goal” can only be “capability, not functioning”. (9-12) That is to say: the government can only make the conditions ready for individuals to achieve or realize or master or enjoy their Capabilities.

“At that point, the decision whether to take up a given opportunity must be their own. Respect for a person requires not dragooning that person into a particular mode of activity, however desirable it might seem”. (9-12)

But all this government expense and intrusion – assuming that it all doesn’t either wreck the polity or bankrupt the government or both – are thus expended simply so folks can ‘choose’ … what? Not to actualize their Capabilities? To actualize them in ways that will harm others or deprive others of the benefits of mutual contribution and cooperation?

And surely, the government and all of Us are being ‘dragooned’ into supporting this incomprehensibly broad and kind of fuzzy Plan.

But as has been the case for 40 years now, ‘choice’ – broadly and vaguely defined and carried to the ultimate extreme – is the only thing that has to be preserved. Nothing else really matters.

And no human being is simply a choice-bot. It is a grossly inadequate vision of human beings. And a life with nothing but ‘choice’ is not a life as humans know it or could live in it. And ‘choice’ without any Shaping at all … is kudzu without a trellis: all you’re going to wind up with is a flat but dense jungle, and not a garden.

Which brings things back to the question as to whether any such ‘secular’ society as is being proposed to be imposed upon the country has any possibility of serving as a livable and survivable vessel for Americans or for any humans.

Or whether this whole past 40 years has been as wrackulous an adventure as Vietnam: a Plan insufficiently conceived by elites who figured that they were too big to fail because they were Americans and they were on top of the world. And that American power and brains could never fail, and that American money would never fail.

And here We are.

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