Feminism as liberalism: a tribute to the work of Martha Nussbaum.

AuthorHiggins, Tracy E.
PositionThe Works of Martha C. Nussbaum: Feminism and Liberalism; History, Identity and Sexuality; Gender and Development

It is a great pleasure for mc to participate in this symposium organized to honor the work of Professor Martha Nussbaum. In her scholarship, Professor Nussbaum has accomplished over and over again something that is altogether too rare in the academy; she manages simultaneously to take seriously both theory and the material conditions of people's lives, producing work that is both rigorous and relevant. Her scholarship has long informed my own both in feminist legal theory and in human rights advocacy, helping me to bridge the gap between theory and practice. For this reason, I am especially grateful for the opportunity to participate in this symposium.

In this essay, I revisit and expand an argument I have made with respect to the limited usefulness of liberalism in defining an agenda for guaranteeing women's rights and improving women's conditions. After laying out this case, I discuss Martha Nussbaum's capabilities approach to fundamental rights and human development and acknowledge that her approach addresses to a significant degree many of the objections I and other feminist scholars have raised. I then turn to fieldwork that I have done in South Africa on the issue of custom and women's choices with regard to marriage and divorce. Applying Professor Nussbaum's capabilities approach in this setting, I speculate as to the types of regulatory schemes that would be either demanded or tolerated by her approach. In the final part of the essay, I suggest that the capabilities approach offers a powerful means of specifying the preconditions for women's exercise of autonomy within the liberal state but that it proves somewhat less useful as a guide to policy choices under conditions that fall far short of this ideal.

  1. FEMINISM AND LIBERALISM

    1. Feminist Critiques

      Liberalism's core idea is a simultaneous commitment to equal citizenship in the public realm and the accommodation of competing conceptions of the good in the private realm. Liberals surely disagree about precisely where the boundary between public and private should be drawn and about how robust our conceptions of freedom and equality must be in the public realm. But for a theory to be recognizable as "liberal," I suggest, this basic idea has got to be there. For example, John Rawls, in the introduction to Political Liberalism, states that "the problem of political liberalism is: How is it possible that there may exist over time a stable and just society of free and equal citizens profoundly divided by reasonable though incompatible religious, philosophical, and moral doctrines?" (1) Similarly, for Martha Nussbaum liberalism "must respect and promote the liberty of choice, and it must respect and promote the equal worth of persons as choosers." (2)

      Feminist legal theorists, responding to liberalism, ask a different question: Can liberalism sustain a concept of equality that is sufficiently robust to eliminate women's subordination in both the public and private domains? Of course, feminists disagree on the answer. (3) Yet even feminist fans of liberalism concede that feminists have elaborated at least two key ideas that, at a minimum, call into question the usefulness of liberalism to feminist objectives. (4) First, feminists have argued repeatedly and, to my mind, persuasively that private power is at least as significant a threat to women's freedom as is state power. Here, consider power as it is wielded within the patriarchal nuclear family or within broader community structures such as religious institutions. Second, feminists have argued that the centrality of choice to liberal conceptions of freedom is problematic in view of the implications of gender subordination to women's exercise of choice. (5) I shall describe each of these ideas briefly and then explore their implications for Nussbaum's conception of human capabilities as a means of articulating core political commitments.

      First, with respect to the public/private distinction, feminists have argued that the exercise of private power threatens women's liberty and equality, regardless of whether it mimics the exercise of power by the state. Indeed, accepting provisionally the liberal distinction between public and private power, feminists have argued that the latter constitutes the principal threat to women's liberty and equality. (6) For example, some have claimed that international human rights standards forbidding torture but placing domestic violence outside the scope of international concern fail to address the central source of violent coercion in women's lives on a global scale. (7) The argument is not that the abusive husband acts under color of state law or to promote the interests of the state (8) but that a meaningful right to freedom, bodily integrity, and security for women must include effective remedies against private violence. (9) Feminists have made similar arguments in many other contexts, ranging from pornography's silencing of women's speech (10) to the regulatory effects of stranger-violence on women's lives. (11) Although women are surely protected in many respects by constraints on public power, these protections do not afford women the same degree of liberty and equality as men, nor do they address some of the most profound obstacles to equal citizenship for women. (12)

      Second, feminists have done a lot of thinking about the way patriarchy creates gendered capacities for individual agency. Recognizing that the exercise of individual choice is always constrained by culture and context, feminists have argued that under conditions of gender inequality, assumptions about choice and responsibility are not politically neutral. This critique has at least two distinct but related strands. The first and earlier strand emphasizes women's position in various social relationships--women as providers of care. (13) According to this critique, liberal notions of autonomy posit an unrealistically unencumbered individual or "atomistic man." (14) Beginning from this conception of liberal autonomy, some feminists have argued that liberalism undervalues care and connection and, as a result, is distinctly masculine in its orientation. (15) Others, Susan Moller Okin and Linda McClain, for example, have defended Rawlsian liberalism against such critiques, insisting that Rawls's use of the heuristic device of the "veil of ignorance" compels the exercise of empathy in the original position. (16)

      Yet their defense does not respond fully to a more important relational feminist claim: that, by positing the self as unencumbered or atomistic, liberalism treats the work of caring as a voluntarily-assumed, private activity (17) and, in so doing, renders it invisible. (18) This move, some feminists have argued, is convenient or even necessary for liberalism. As Wendy Brown explains, "the autonomous subject of liberalism requires a large population of nonautonomous subjects, a population that generates, tends, and avows the bonds, relations, dependencies, and connections that sustain and nourish human life." (19)

      The second strand of the agency critique concerns itself less with the constraints of relationship--the bonds of family and emotional obligation--than with the more diffuse and subtle constraints of culture. This critique begins from the assumption that cultural norms, including language, law, custom, and morality, are not merely products of human will and action but define and limit the possibilities for human identity. (20) Feminists have argued that this social construction of identity is gender-differentiated, contributing to women's subordination. Thus, feminist social constructionists are concerned not so much by the liberal preoccupation of state limits on individuals (implying external constraints), but by the way a combination of forces creates or defines gendered individuals (implying both internal and external constraints). (21) If women are socially constructed in ways that afford them less agency relative to men, then liberalism's tendency to regard liberty as the absence of external constraints (or, even more narrowly, the absence of state-sponsored external constraints) leaves women less free than men in ways that are not legally cognizable. (22)

      Although this concept of internalized, socially-defined constraints on women's identity has long been a part of feminist theorizing, (23) feminist legal theorists in particular have focused on the question of freedom as it relates to choice or voluntariness. For example, Kathryn Abrams has developed a theory of partial agency in the context of women's sexuality that has important implications for any definition of decisional autonomy. (24) Abrams argues for a feminist conception of the self that "juxtaposes women's capacity for self-direction and resistance, on the one hand, with often-internalized patriarchal constraint, on the other." (25) Abrams suggests that premising legal analysis of private choice on this model of individual agency would lead to better interpretations of women's sexual decision making--for example, identifying coercion and consent in rape cases. (26) Adopting her approach, however, would also have implications for the boundary between public and private because it entails scrutiny of the circumstances and internal motivations of private choices ordinarily shielded from view and invites a second-guessing of those choices that would narrow the scope of women's decisional privacy as traditionally defined. In short, the agency critique renders problematic reliance on the concept of individual choice as a boundary for state regulation of the private sphere.

    2. Nussbaum's Response to Feminist Critiques

      Professor Nussbaum responds to these feminist critiques of liberalism in several ways. First, she notes that the claim that liberalism is too "individualistic" disregards the importance that many liberal thinkers assign to family and community. (27) At the same time, she concedes that liberals do indeed...

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